R v Safarjalani

Supreme Court of NSW|2019-02-01|Before: Walton J, Schmidt J

Solicitors: Office of the Department of Public Prosecutions (Crown) MG Legal (Offender) File Number(s): 2017/00057181

remarks on sentence

HIS HONOUR: The offender, Gazi Safarjalani, was arraigned on 10 September 2018 before a jury. He entered a plea of not guilty to a charge of murder on that day.
On 4 October 2018, the offender was found guilty of a charge that he, on 4 March 2014, at Petersham in the State of New South Wales, did murder Bill Panagakos ("the deceased").

Victim Impact Statements

Before considering the circumstances of the offence and the offender, it is appropriate to make reference to a victim impact statement of Anna Panagakos, the sister of the deceased, who made the statement on behalf of the deceased's mother, Chrissa Panagakos, and herself.
The victim impact statement was tendered to the Court without objection provided the statement did not constitute a circumstance of aggravation (no such reliance was placed on the statement by the Crown). No question was raised as to the weight to be attributed to the statements or any attempt made to limit or traverse the use that may be made of them: see R v Tuala [2015] NSWCCA 8 at [51]-[81] (per Simpson J, with whom Ward JA and Wilson J agreed).
The High Court of Australia in Munda v Western Australia at [54] referred to the role of the criminal law including "the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence".
The common law requires those passing sentences to have regard to the effect of crime on the victim: Porter v R [2008] NSWCCA 145 at [54].
Section 3A(g) of the Sentencing Act provides that one of the purposes for which a court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community". The application of ss 3A(g) and 21A(2)(g) of the Sentencing Act ("the injury, emotional harm, loss or damage caused by the offence was substantial") were not intended to alter the common law principles on sentencing.
The Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW) makes it clear, that in applying s 3A(g) of the Sentencing Act, a victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a Court on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community.
The deceased was 45 years of age at the time of his death.
Ms Panagakos described her brother as not being a bad person - he was kind, sincere, loving and showed huge empathy for others. Ms Panagakos also described her brother as being beautiful and kind but naïve.
She described the impact of her brother's murder as being catastrophic. The deceased had been taken away from her mother and herself in a most cruel and violent manner. They were consequently left each day with a feeling of emptiness, pain and sadness.
Ms Panagakos described how her mother had panic attacks, suffered anxiety and barely slept in consequence of the murder. Her health had deteriorated dramatically and she had become very frail. She seemed to have lost interest in living.
Ms Panagakos said that she looked at the world differently and had lost trust in people. She had lost interest in meeting people and her sadness had had a negative effect on her relationships with friends, family and colleagues.
The Court acknowledges the understandable statements of grief that have been expressed by Ms Panagakos and the continuing impact that the murder has had upon her mother and herself. Pursuant to s 28 of the Sentencing Act those matters are taken into account in determining what penalty should be imposed upon the offender. Specifically, the victim impact statement will be taken into account as an aspect of harm to the community but not as a factor in aggravation.
After dealing with the objective features of the offence, I will turn to the degree of objective seriousness of the offence and the measure of the offender's moral culpability.
All murders are examples of a very serious offence. Nonetheless, whilst it may be difficult for the deceased's surviving family members, who have attended the trial and may be expected to be present to hear sentence passed today, to accept that this murder should be categorised in seriousness relative to other murders on the spectrum of such crimes, the Court has to pass sentence for such offences in a very wide variety of circumstances. The ranking of the seriousness of the offence does not detract from the gravity of the offence as all lives are treated as equally precious in the criminal law. Various factors determine whether the taking of a life should, in the particular circumstances of a crime, be more or less heavily punishable.

Objective Features

The fact-finding role following a jury verdict is that described in Isaacs v R (1997) 41 NSWLR 374 (see also Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [12]-[17]. The sentencing judge is required to find the facts material to the sentence. To the extent that findings are based on evidence led at trial, they must be consistent with the verdict of the jury. Any findings of fact that are adverse to the offender must be found beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]. A judge's finding of facts in sentencing is based "both on what was necessarily implicit in the jury verdict and on his/her own impressions": R v Spathis; R v Patsalis [2001] NSWCCA 476 at [196].
The murder occurred at 11.13pm on Tuesday, 4 March 2014, the night of deceased's 45th birthday, at the corner of Queen Street and Railway Street, Petersham.
The offender and the deceased had known each other since around 1997-1998. The offender and the deceased became friends. They were in jail together. The offender and the deceased were later in a café business called "Gossip" situated in the Top Ryde Shopping Centre at North Ryde. There was no suggestion on the evidence that the failure of the business led to any dispute between them.
The deceased met Ms Thi Kat Nguyen (known as "Kat") in 2007 and they began a relationship after that time.
Mr Andy Nguyen was the son of Ms Kat Nguyen. Mr Nguyen first met the deceased near the end of 2008 or early 2009. The deceased was starting the café around that time. At one point Mr Nguyen started working at the café on Saturdays and sometimes on school holidays. During that time, there were two other men working there, including the offender.
The deceased and Ms Kat Nguyen broke up around Easter 2011.
The business "Gossip" was sold around mid-2013. The offender said in his ERISP of 15 December 2014 that, after the sale of the business, he had less contact with the deceased for some time. That is confirmed by telephone records which demonstrate that there was less contact between the two men until the end of 2013.
In the days and weeks leading up to the murder, the offender and the deceased were, however, in regular contact. This included phone conversations, text messages and a face-to-face meeting.
At the time of the offence, the offender was leasing a unit at Breakfast Point. The offender lived with his wife Sahar Zikria and his then 6 month year old girl.
The deceased lived with his wife Hung ("Alisha") Siu at a leased unit in Burwood.
Mr Vaso Davidovic was a friend of the deceased who had met the deceased about one year earlier through a friend known as "Peter the Serb". The deceased's wife and Mr Davidovic's wife were also friends. In January and February 2014, the deceased went over to Mr Davidovic's house in Casula many times. The deceased got along with a man who lived with Mr Davidovic for a few months called "Fat George" who was Serbian.
Sometimes while the deceased was at his home in Casula, the deceased, George and a man named Mohammad Chamma, known as "Tank", would sit outside drinking coffee, talking and laughing. Mr Davidovic said it was not true that he let the deceased use the place as a drug lab.
On 21 February 2014, the deceased drove Mr Davidovic and his family to the airport to fly to China. Mr Davidovic left his keys to a Mitsubishi Canter truck so the deceased would service the vehicle.
On the Friday or Saturday before the offence, the deceased and the offender went to see Ms Michelina Lapa who owned the "Golden Banana" at Top Ryde City Shopping Centre. The three had a coffee and a discussion at the back door of the Golden Banana for about half an hour. Ms Lapa said the deceased and the offender were "getting on fine".
At the time of the offence, the offender's wife was travelling in Melbourne. His daughter remained in Sydney with the offender.

4 March 2014

I now turn to the events of 4 March 2014.
As mentioned, the date of the offence was the deceased's birthday.
Telephone records of the deceased and the offender recorded their movements via their hand sets.
Telephone data revealed that, on the morning of 4 March 2014, the deceased's phone connected to a cell tower at Casula Show Time from about 8.28am to 12.28pm.
The deceased spent time with his mother that day at her home in Taringa Street, Ashfield at around 1.30pm for about one hour. She observed that he was annoyed about an argument that he was having with his sister.
The offender was also in the Sydney area.
There was evidence that the offender had been a friend of Mr Garry Zreika from childhood. The offender would borrow cars from Mr Zreika from time to time. Mr Zreika owned, at the time of the murder (he obtained the car on lease through his private company), a black Toyota Kluger CQP01L.
The Crown submitted that the offender used that car the day of the murder and that the car was used as a "getaway" vehicle after the murder. I will return to this factual question later in the judgement. However, at this junction I note that I accept the offender's submission that there was no evidence of any prior connection between occasions that the offender would borrow cars from Mr Zreika and any involvement by the offender in criminal activities.
At around 1.20pm, the telephone data showed the offender's phone obtained data through a tower in southern Sydney at Blakehurst. At 1.21pm, a photo was taken by a Mobile Automated Number Plate Recognition System ("MANPR") of a black Toyota Kluger CQP01L on Railway Parade, Hurstville.
At 2.37pm, another picture of that black Kluger was taken by a MANPR at Auburn. At 2.53pm, a speed camera detected the Kluger speeding in a school zone in Chester Hill.
At 4.16pm, the M5 Hammondville Toll Plaza captured the Kluger travelling East through the plaza.
Parking receipts were found in Mr Davidovic's Mitsubishi Canter truck, which at the time was in the deceased's possession. Tickets were found in the vehicle which were issued at 2.45pm in Burwood City Council on 4 March 2014.
At around 4.40pm, the deceased went with his wife, Alicia, to Brighton Le Sands to go to a café where they remained until around 6.30pm. The deceased was wearing a red top, blue jeans and white runners at the time (the clothes he was wearing at the time of his death).
Whilst the deceased was at Brighton, the telephone data revealed the offender's phone obtained data through the Granville East Tower at 5.22pm and the Northmead Tower at 5.43pm (his wife's parents' home was at Northmead). The offender's phone did not connect with any tower between 1.20pm until the first of those times.
At around 7pm, the deceased and his wife went to the Ashfield Hotel.
At around 8pm, the deceased and his wife left the hotel and went home. The deceased spoke to his wife about what he intended to do that evening. At about this time, the offender's phone connected to the Eastwood Towers.
At around 8.12-8.14pm, the deceased's phone operated through Croydon Tower, and he rang the offender for about 50 seconds. There was then a call from offender to deceased. The offender's phone was in the Eastwood area at 8.15pm. This call was also under a minute long.
Thereafter the two men headed separately to Petersham.
The offender's regular practice was to meet the deceased for a drink on his birthday. Further, they had regularly met at the Italian Forum before the day of the murder, which is located in Leichhardt, a short distance from the scene of the shooting in Petersham. It may be inferred that, by the telephone calls, they had agreed to meet in Petersham.
At around 8.28pm, the offender's phone connected to the Rozelle Tower and at around 8.57pm, the offender's phone connected to the Petersham Tower. The offender's phone was in the coverage of the Petersham Tower at 10.57pm.
After 9pm, the deceased called his friend, Mr Scott Turner. This was the final call by the deceased before the shooting. It lasted about 9 minutes.
Mr Turner said that he and the deceased spoke about a tip for gambling on a horse and Mr Turner told the deceased "this horse could win tomorrow". There was no discussion between the two of further plans that evening. At one stage, the deceased was whispering on the phone.
The deceased had told his wife he was meeting friends, that he would be about 4 hours and that he would take a taxi (as he had been drinking). The deceased caught a taxi from Burwood Road to the intersection of Parramatta Road and Railway Street at around 9.17pm. Within a minute, the deceased's phone data recorded that he was in the Petersham area.
The whereabouts of the deceased and the offender are not known between about 9.17pm and 11.13pm at the time of the deceased's death.
On the evening of the offence, Ms Tulla Quinlan was at her aunty's place in Leichardt where she had smoked cannabis. As she was walking home along Railway Street when she saw the deceased who kept looking towards Parramatta Road "like he was looking for something or someone was following him". I will return to Ms Quinlan's evidence.
Mr Peter Hardy was the only witness to the shooting who gave evidence that may be accepted. Neither the Crown nor the offender contended Ms Quinlan's account of the events occurring at the time of the shooting should be accepted. Having regard to my observations of Ms Quinlan, and her drug consumption at the time of her observations of the shooting, I consider that approach to be sound, even if it remains likely Ms Quinlan was nearby the shooting.
Mr Hardy gave a statement to the police on the early morning of 5 March 2014 (he stated this occurred at about 3.30am that morning) ("the March statement") and a second statement on 10 December 2015 ("the December statement") (the latter statement was not before the Court, except for the markings that Mr Hardy made on the "street view" photograph of Queen Street Petersham). He gave evidence at the trial and was cross-examined. I will commence the discussion of his evidence by summarising the evidence Mr Hardy gave at trial, although it should be emphasised at the outset that the offender suggested that his evidence was unreliable, particularly with respect to inconsistencies with the March statement.
At about 11pm on 4 March 2014, Mr Hardy decided to leave his residence at Railway Street, Petersham via a lane accessible from the rear of the house which took him to Queens Street, Petersham. He left via that rear exit about 10 minutes later. He entered and walked along Queen Street towards Railway Street in an easterly direction.
At the time he was wearing a green and gold cricket jersey and had hair which could have been neck-length. He had drunk numerous beers during the day on two occasions and described himself as "pretty intoxicated".
He noticed an unfamiliar "small, black… 4WD" parked on Queen Street. Whilst there were no lights on Queen Street, there was a light at Railway Street. He had used his mobile phone as a torch to walk up the laneway but extinguished it when he reached Queen Street. He retained the mobile phone in his hand.
Mr Hardy then gave evidence which attracted controversy.
He stated that he had taken 10 to 20 steps in Queen Street when he saw two men in dark clothing (like black tracksuits) walking on Queen Street side-by-side towards the intersection of Queen and Railway Streets. He thought they had exited the black 4WD.
Mr Hardy saw a third person walking on Railway Street on the footpath who crossed Queen Street towards Parramatta Road (he moved from right to left from where Mr Hardy was facing). He stopped at approximately the place where the deceased was shot on the north-western corner of Queen and Railway Streets (Mr Hardy later inspected the body at that location). Mr Hardy was plainly referring to the deceased in that context.
The two men walking down Queen Street "split up". One walked towards the deceased. The other moved to the "right" on the side of Queen Street where Mr Hardy's house was located. They were about 4 metres from the deceased when they split up (Mr Hardy marked photographs on 10 December 2015 demonstrating the position and movement of the two men). I will describe this evidence as the statement as to two men walking down Queen Street and then splitting.
Mr Hardy then noticed a "flash". The deceased "spun around" (the deceased was standing when he first saw him: Mr Hardy insisted that was prior to the first shot) and there were two further flashes at which time the deceased fell to the ground.
Mr Hardy then gave a description of the two men which was relied upon by the offender with respect to the issue as to whether the Crown had proved the deceased was shot by the offender.
The man who veered to the right was "tall and skinny", noticeably thinner and taller than the other man. He was about 6 foot tall. The other man was shorter and "looked a little bit fat". Initially Mr Hardy said the shorter man was 5'2 to 5'4. However, having been referred to his March statement he agreed this man was "about 5'8 inches tall, chubby round build, short dark hair". He looked "a little bit fat".
The shorter, chubbier man was "a few metres" from the deceased.
Mr Hardy was about 20 metres away from the two men at the time of the shooting and the taller man was about 8 metres closer towards Mr Hardy than the other men. The shorter man then looked directly at Mr Hardy, and they both stopped and froze.
Mr Hardy heard footsteps running and assumed it was the taller man who was running beside the footpath on the side of parked cars. He could not see this man running. He thought the tall man might "circle" him. The short man started running towards Mr Hardy struggling with his jacket in a fumbling way. Mr Hardy ran up a laneway (the jury was shown the laneway during a view) and hid next to a garage roller door near his home. He held a rock. He then "heard two car doors shut", a car engine start and a vehicle "take off". In cross-examination, Mr Hardy conceded that he did not see the car doors open, nor anyone get into the car, and that he was in a fair bit of panic at the time.
Mr Hardy said the car that drove away was the "small black car" because the parking space was empty when he ventured back onto Queen Street shortly after the car sped off. He saw the black car disappear over the hill on Queen Street.
In cross-examination Mr Hardy agreed he had said the following in the March statement: About 11.10pm on this day I walked from the rear of my address onto Queen Street Petersham. I began walking in an easterly direction along Queen Street towards the corner of Railway Street. At this time I heard one (1) loud bang coming from the direction of Railway Street. I heard a second bang only a few seconds after this. The two bangs sounded like loud firecrackers. I looked in the direction of the noise and saw a man falling to the ground on the corner of Queen and Railway Street. I did not realise at the time that there were others with this man. I noticed this man because he was wearing very bright clothing. I noticed that he was wearing a red shirt, denim jeans and white tennis shoes… I heard a third loud bang only a few seconds after I noticed the man falling. The third noise seemed to be a lot louder than the previous two. I also noticed a flash of light when I heard the third noise. I did not notice this flash when I heard the previous two noises. It was then that I noticed that there were two (2) other people standing next to where I had seen the first guy.
Mr Hardy was cross-examined as to inconsistencies between his March statement, and, the December statement and evidence he gave at trial. The offender identified the following inconsistencies in the context of submissions made more generally about the reliability of Mr Hardy's evidence: 1. He did not mention in either statement that the deceased has crossed in a southern direction across Queen Street. 2. In the March statement, he said that he heard two bangs and then saw a man falling onto the ground. He did not realise at the time there were "others with this man". He made no mention in that statement of two men walking down Queen Street and then "splitting". In his first statement he only observed the two men after the deceased fell to the ground. 3. There was no reference in the December statement to the small black car driving down Queen Street and disappearing over the crest of the hill. 4. There was an inconsistency between the March statement and his evidence as to the period of time he waited before returning to Queen Street from the laneway in which he had taken shelter.
Mr Hardy agreed in cross-examination that the recollection of the deceased crossing the road was a more recent memory. He agreed his memory had changed over the "last 4 years" and what he had told police on 5 March was his memory of the events at the time. As to the black car driving up Queen Street and disappearing over the crest of the hill, Mr Hardy disagreed that it was "another memory" which had come to him "over the passage of time since he made those statements." He said "that's virtually how it was to me". He also disagreed that he had given different accounts as to the time which had elapsed before he returned to Queen Street from the laneway
In agreeing, during cross-examination, to the content of this March statement or in turning to various aspects of his December statement, Mr Hardy concurred with some hesitation. For example, when taken to the aspect of his statement where he noticed that there were two men other than the deceased and was asked if that is what he told police, he stated "If that's what I said, yeah".
Mr Hardy had not re-read his statements before giving evidence and, in fact, had difficulty with reading per se. His evidence was adjourned overnight to permit his statements to be read to him.
In written submissions, counsel for the offender contended that, whilst Mr Hardy was not a particularly impressive or reliable historian. The most reliable view of events was that provided to police shortly after the shooting rather than subsequent versions provided by him either in his second statement or during the trial which departed from the original version. The later account which was inconsistent with the March statement was the "product of reconstruction" and, accordingly, not reliable. In oral submissions, counsel for the offender contended that Mr Hardy was not a reliable witness. The Court could come, it was submitted, to the view it did not accept "anything Mr Hardy says" (notwithstanding counsel relied upon the description of the shooter and "the other man" given by Mr Hardy as a basis for arguing the offender was not the shooter) or the Court could accept the account given on the evening when Mr Hardy's memory would be "its best and unaffected by the tendency to reconstruct".
I will continue my discussion of Mr Hardy's evidence by considering just what aspects of his evidence may be properly described as inconsistent as between the two statements he made and his evidence under oath before the Court.
I will commence that discussion by, firstly, considering some of the areas of purported inconsistency which were relied upon by the offender which may not, in my view, properly be described as inconsistencies in the accounts given by Mr Hardy.
I do not consider the omission as to the black 4WD disappearing over the crest of the hill represents an inconsistency with the March statement in which Mr Hardy describes the car moving in a westerly direction along Queen Street at speed.
It was put to Mr Hardy in cross-examination that in his March statement, he indicated he waited a minute, after the black car departed, to emerge from his hiding place but at trial had not adhered to that recollection. He gave evidence at trial that "I'm pretty sure I didn't wait a minute" and went out as "soon as that car went past". He stated that what took him a minute was reaching the body. In my view, that evidence was entirely consistent with his March statement.
I turn then to the inconsistency relied upon by the offender between the March statement and the December statement and as his evidence before this Court concerning Mr Hardy's account that he saw two men walking down Queen Street and then splitting up with the shooter heading towards the deceased and the taller man going to the other side of the street.
I find that, whilst Mr Hardy's evidence in this Court does not lack coherency, there was an inconsistency, in that respect, with his March statement (even though his evidence is not inconsistent with his depictions in photographs corresponding to the December statement).
As mentioned, Mr Hardy's account at trial, in this respect, is a matter which the Crown must prove beyond reasonable doubt as it concerns the question of planning and goes to the objective seriousness of the offence. Mr Hardy's account of seeing the deceased cross the street before the shooting must also be proved by the Crown beyond reasonable doubt because that evidence is intimately connected to the evidence of the two men splitting up. Mr Hardy omitted to mention in his March statement that movement by the deceased, that omission would also appear to have been made in the December statement.
My overall observation of Mr Hardy was that he was a witness who was responsive, frank and at times forthright in his answers. He gave his evidence truthfully to the best of his recollection.
His occasional hesitancies in agreeing with the content of his March statement were, in my view, a function of him not being reacquainted with that document after a lengthy period of time by re-reading it (or having it read to him) and his difficulties with reading. He candidly accepted the contents of his earlier statement where it was inconsistent with the statement he had earlier made and that his memory had changed over the last 4 years in the areas of inconsistency. Nonetheless, he did not retreat from his evidence as to two men walking down Queen Street and then splitting before the shooting, a position which was consistent with the depictions of those movements in the street view photograph accompanying the December statement.
I would certainly not describe Mr Hardy, as the offender sought to do, as an unimpressive or unreliable witness.
I will return to the area of inconsistency in that respect momentarily but it should be observed, at the outset, that Mr Hardy's account of the shooting itself broadly aligned with, and was supported by, other evidence. The offender admitted there were two men present at the time of the shooting in addition to the deceased. The pathologist's evidence as to stippling, suggesting a close proximity of the firearm when the shots were fired, was consistent with Mr Hardy's account that the shooter was close to the deceased. Mr Hardy's account of a getaway car speeding off and his description of a small black 4WD was, in my view, consistent with the evidence as the car departing the crime scene (I will return to that evidence below).
In making an assessment of the reliability of Mr Hardy's evidence and, more particularly, in considering the aspect of his evidence which was inconsistent with his March statement (and said to be a product of reconstruction), I have given consideration as to whether Mr Hardy's memory may have been adversely affected by the circumstances operating at the time he gave his March statement. There was evidence of Mr Hardy's intoxication at the time of the shooting and the traumatic events he had encountered that evening including legitimate fears he held for his own safety.
However, I do not consider such a conclusion should be reached.
Mr Hardy did not describe what his state of intoxication was when giving his statement: he simply said, in a general way, he had too much to drink that night. Neither counsel sought to explore how that might have affected the giving of his statement. He had indicated there were limitations as to how well he could provide a description of the small black 4WD due to his alcohol consumption (he was "pretty intoxicated") but those observations were made prior to him witnessing the shooting. By contrast, his evidence of the shooting and its aftermath poignantly demonstrate that he became, at least to a considerable extent, alert and focussed by the traumatic events and fear he experienced. This is not unexpected.
Mr Hardy's evidence under oath is coherent and a great deal of it is consistent, as I have mentioned, with other evidence (and his March statement). I have formed the view that the circumstances operating at the time of the making of Mr Hardy's March statement affected his ability to fully and clearly recall all of the details of events. He had recounted observing the two men he clearly associated with the shooting of the deceased (by his observations at the time of the shooting and the aftermath when the two men turned and ran towards him) but did not recount, as he later did, when he first noticed them or their movements before the shooting (which received no mention at all in the March statement).
In fact, with slightly less sophistication, Mr Hardy said as much. He explained that he gave his first statement early in the morning and that he had too much to drink that night and that "I couldn't plan it in [my] head."
It may also be recalled that a significant component of Mr Hardy's evidence was entirely consistent and unshaken by cross-examination.
In my view, the above disputed aspect of Mr Hardy's evidence sworn under oath before the Court should be accepted as truthful and reliable.
Those considerations together with the admission by the offender as to two persons being present at the crime scene (in addition to the deceased) results in the conclusion that the Crown has proved beyond reasonable doubt that two men walked down Queen Street and then split before the shooter shot and killed the deceased (as earlier summarised by me) and that Mr Hardy saw the deceased walk across Queen Street to the north west corner shortly prior to the shooting.
That conclusion also incorporates my acceptance of Mr Hardy's observations as to a small black 4WD which are consistent with my later findings concerning the "getaway" car to which I will return after considering the mode of death.

Mode of Death

DSC Mayne described the deceased was "lying half on the footpath and half on the road at the north-western side of Queen and Railway Street. The [deceased's] head was on the road and his feet were still on the footpath. His legs were crossed over. The [deceased] was wearing a red T shirt with writing on the front, light blue denim three quarter shorts and sneakers… there was a large amount of blood on the victim's face and there was blood pooling behind his head and running down the gutter".
Five fired cartridge cases were located by crime scene investigators on the northeast corner of the intersection of Queen and Railway Street.
Some personal items, including cigarettes, were located at the scene and the deceased's mobile phone, $5,934.20 cash, a note and his licence were also found in the deceased's pockets.
A ballistic expert, Mr Bolton, confirmed the five bullet casings were from a 3.8 Automatic Calibre and that they had been discharged from the one self-loading automatic handheld firearm.
Dr Kendall Baily was the pathologist who conducted the autopsy on the deceased. Dr Baily issued a report in which he made the following post-mortem findings. He observed four gunshot wounds and one surface wound. He opined that two of the wound tracks entered on the left side of the deceased's face which had associated stippling which suggested a close proximity of the firearm. These two wound tracks passed through the head, including the brain, and the projectiles were recovered from the posterior aspect of the inside of the cranial vault (at the posterior surface of the brain).
There was a third gunshot wound on the right side of the face. The injury associated with this wound was confined to the soft tissues of the right cheek. The projectile was recovered from the soft tissues of the cheek immediately in front of the right ear. The fourth gunshot wound travelled from the left side of the back through the inferior part of the left chest and the left upper quadrant of the abdomen.
There was also an abrasion injury on the deceased's upper left arm, which may have represented a tangential grazing/glancing gunshot wound. Dr Baily opined that the direct cause of death was gunshot wounds to the head and torso.
The four bullets recovered from the deceased's body were examined by Mr Matthew Bolton, the forensic ballistics investigator. Mr Bolton confirmed the five bullet cartridge casings found at the scene were of a 0.380 calibre (four with a Winchester headstamp, and one with a CBC headstamp).
He opined that the cartridge casings and the bullets had been discharged from the one self-loading automatic handheld firearm. As to the wound entry on the deceased's left eye, Mr Bolton opined that the muzzle of the firearm was at an intermediate distance at the time of discharge. Mr Bolton gave the opinion that the superficial gutter wound on the deceased's arm was caused by a fired bullet.
The mode of death is, in my view, only consistent with an intention to kill. That conclusion is buttressed by the manner in which the murder was undertaken, as will be discussed in the context of the issue of whether the offence was planned below. I find the shooting of the deceased was undertaken with an intention to kill.
I turn then to the vehicle at and leaving the crime scene.
Immediately after the shooting a vehicle said to be the "get away" car drove along Queen Street in a westerly direction.
The car drove away along Queen Street, and turned left onto Palace Street. CCTV footage was obtained from Cass Brothers. The jury was shown Cass Brothers on the view. CCTV stills looking over the rear car park from the Gateway Club, which had a rear entry onto Queen Street showed a black SUV driving past. The rear entry to the Gateway Club was shown to the jury on the view.
Ms Quinlan's view of the departure of the shooter is inconsistent with all other evidence.
Mr Julian Ansart was on his balcony having a cigarette and listening to music through earphones when he heard "loud pops" which were not all consecutive; there were two or three at first, then one or two that followed. Mr Ansart's third-floor unit was shown to the jury (at the view). It was noted that in closing submissions at trial, the defence noted that Mr Ansart was the only person, apart from Mr Hardy, who was outside with a view of the crime scene.
Mr Ansart, on his balcony, saw some yellowish/orange lights flashing like someone had unlocked a car and a modified car revving up. The car went down Queen Street without any headlights on. He described the car as a dark blue or maybe black SUV, which he could tell was a Ford Territory (It was a "very dark colour SUV"). He was "pretty certain" it was a Ford Territory, and said: I obviously couldn't be 100% sure because it was fairly dark, but like I said, I work with cars ‑ I worked with cars in the past and I can say for sure that ‑ I can say I'm 90% sure that it was a Ford Territory.
Mr Ansart's statement was read to him in cross-examination, in which he described: I noticed that the bonnet and roof was a very dark blue colour. I could tell it was a Ford SUV. I knew it was a Ford because I saw the blue and silver Ford badge on the front grill. It had four doors. The front bumper was a silver or grey colour. It was hard to tell the exact colour because the street light is a white blue colour. It had silver or grey‑coloured side skirts. I had seen that particular model before which is why I'm 100% sure it was a Ford.
He said the front bumper, side skirts and rear bumper were a light colour, maybe white, grey or silver and they were two-tone. The windows were slightly tinted.
As to the badge on the car, Mr Ansart said he could see the Ford badge on the front grill of the car which was a really long oval shape which was dark, so not a Toyota or Hyundai.
As to inside the car, Mr Ansart said: I could see someone driving the vehicle. Nobody in the passenger seat, I don't think, unless the person was wearing dark clothes. I could see someone driving the vehicle and it was light‑coloured clothing.
The driver had a "more darkish pigment skin colour". He said he could tell it was a male driving because of the physique and the person looked built, and the driver definitely was not a skinny bloke.
Mr Nathan Ives, who lived in a ground floor unit on Queen St in the same block as Mr Ansart, heard five loud bangs, equally spaced, with about half a second between each one.
Mr Ives looked out of his bedroom window and saw a black 4WD drive past window driving east to west along that street. He described the 4WD as "it wasn't an especially huge or compact. It was just sort of a regular type 4WD size". He did not notice anything on the roof.
Ms Mareika Walsh lived in a single story terrace at 13 Queen Street, which the jury was shown on the view. She heard five "loud bangs… unusual sounds".
Ms Walsh was in her hallway, about a metre away from the door when she saw a car go past. It was not long after the loud noises that Ms Walsh saw the car, she thought about 15 seconds.
The car was going fairly fast, appeared black, and seemed like an elevated black car, like 4WD or SUV, described as "jeep-type", heading west on the one way street. She confirmed that the car was one solid colour, being black. She could not make out the make or model. She confirmed her statement in cross-examination which contained the following passage: The four-wheel drive was a box shape with shiny paint work. It was a similar shape to a new jeep. The adjoining part between the bonnet and the windscreen was at an angle close to 90 degrees.
She used "jeep" as a generic description of the 4WD.
Mr Luke Mercer (whose statement was read to the jury) saw a "black or very dark station wagon", which "could have been blue", speed up Queen Street, and said it was either a Subaru Forester or a Nissan Q, and was a "very square car". He said the car had an exhaust tip to give it a lower sound.
Mr Tyne Holmes lived in a unit block which backed onto Queen Street, which was also shown to the jury at the view. After hearing the shots, he poked his head out of the window, and saw a black mid-sized SUV, like a Jeep, with one man standing next to it on footpath, and heard frustrated yelling. The man near the car was about 185-190 centimetres and of an average build with a shaved head or very shortcut hair. In his statement, Mr Holmes said he was wearing a light coloured long-sleeve jumper and long dark pants, but at the time of giving evidence he could not remember what that man was wearing. The man remained near the car for around three seconds, then the man ran west down Queen Street and disappeared to the left. The car then pulled out and disappeared over the hill. Mr Holmes continued looking out the window and about a minute or two after the car left, he saw people gathering at the intersection including a Caucasian male approaching Railway Street wearing a gold shirt, possibly a jersey, with neck length hair yelling out to people.
Submissions were made to the jury by the offender during the trial that Mr Holmes account should not be understood as the identification of Mr Hardy running because of Mr Holme's later identification of a man meeting Mr Hardy's description approaching the deceased. It is unnecessary to further explore that question as counsel for the offender properly conceded that, given the jury verdict, the jury must have accepted that the offender entered the car, otherwise they could not have found that the offender was party to a joint criminal enterprise to kill the deceased (assuming that, by the evidence of the description of the shorter man (together with other evidence), the jury could not be satisfied, that the offender was the shooter).
I am satisfied that the persons engaged in the shooting of the deceased left the crime scene by a black 4WD or SUV at speed without lights for at least the beginning of the journey along Queen Street. Five witnesses saw the car. All witnessed a dark 4WD. Mr Ansart said the car was dark blue but also accepted it may be black. CCTV footage captured a dark car travelling west on Queen Street at about the time of the shooting. The Crown submitted with some force that the reflection of light seen in the photographs of the Kluger in Ex 28 was consistent with the depiction of the reflection of light off the car drawn in Ex 8 by Ms Walsh who observed the light bouncing off the top and middle of the car.
I also find that the car in question was the Toyota Kluger CQP01L. The description of the "getaway" car used by those involved in the murder was consistent with that of the Kluger. Mr Ansart stated (to a 90% probability) that the car was a Ford Territory, although acknowledged that the darkness did affect his view. He was outside when he observed the car but it was moving at speed in a dimly lit street with the car's lights extinguished. Notwithstanding his background, doubts may be held in those circumstances about his account as to the make of the vehicle. For example, it strains, to some extent, credulity that Mr Ansart was able to observe the car's insignia (and the colour of the same) but could not be completely sure of the colour of the car. I agree with the submissions of the Crown that this conclusion is also supported by the circumstantial evidence of the movements of the Kluger on 4 March and the offender's phone on that day. Within 90 seconds of the offender's phone connecting with the Blakehurst Tower, the Kluger was nearby Railway Street, Hurstville.
Regard must be given to the offender's relationship with the owner of the Kluger that he had known for many years. After the offender's phone obtained data through the Blakehurst Tower at about 1.20pm on 4 March, the offender's phone did not again connect with any tower until 5.22pm. Hence, there was not, in this respect, any evidence to suggest the black Kluger and the offender's handset were recorded as being in different locations at the same time on 4 March.
In closing submissions at trial, the Crown correctly submitted there was no evidence that the offender had any other car at or near the scene. There was only one taxi which left Petersham at around the same time of the shooting, and a photo of the man that caught the taxi was in evidence and it was not the offender.

After the Shooting

The offender's phone tracked back to Eastwood after the shooting.
Sometime on 5 March 2014 the offender disposed of his phone.

Later in 2014

The police first spoke to the offender about the murder in late September 2014.
By this time the police had installed in the offender's unit in Breakfast Point a surveillance device. The device captured numerous conversations from then until late December 2014 in which the offender discussed various aspects of the matter with his wife.
On 1 October 2014, the offender attended the Marrickville Police Station and made two statements.
In his first statement, the offender gave information about the deceased's gambling and involvement in criminal activities.
He said that he saw the deceased at Christmas 2013, and in January 2014. He said in the first statement: I can't recall exactly the last time I saw Billy as I was seeing him a few time throughout January and February 2014. We would meet up at my place at Lidcombe or a coffee shop… I learnt Bill got shot when I was reading the newspaper…
Those statements were relied upon by the Crown as lies by the offender which constituted evidence of a consciousness of guilt. So too were aspects of the second statement where the offender said he could not recall where he was going or where he was on 4 March and he expected he was with his daughter at home on that day.
The offender spoke to his wife after that meeting with the police, and that conversation was recorded. The offender said that the police wanted him to come back to the station at 7pm to answer one question he forgot to ask, "where were we that day or that night". When asked by his wife "what are you gonna say", the offender replied "How am I supposed to remember that day anyway maybe I was with him maybe I wasn't maybe I spoke to him or not I don't know". The offender then said "maybe I was with my daughter maybe I was home".
On 29 November 2014, another conversation between the offender and his wife was recorded. The two were talking about the police and the offender said, "Come on, I'm gone Janine. I'm gone. That's why [ind]… I'm gone, you know what I mean."
Later in the conversation, the following conversation occurred: Sahar: "Can't [ind] overseas. Can't [ind] send someone to take the blame". Gazi: "That's what I was thinking. That's what I was thinking." Sahar: "No, but he knows you won't talk. But at the same time if he can send someone (fingers click), oi, because you're saying" Gazi: "He can't". Sahar: "All right". … Sahar: "You're clearly a key player?" Gazi: "Yes". Sahar: "Someone you can trust. So why would they get rid of an asset when they can get fucking someone and pay a couple of hundred thousand dollars to the family?" Gazi: "Now I've thought about that… No I've already thought ‑ I've gone like everything you say I've already thought. I thought about that. I thought about that…. Cause I already have." Sahar: "Yeah".
On 1 December 2014, the offender went to Campsie Police station where an interview was recorded with DSC Tearne and Detective Sargent Maree.
On 15 December 2014, the offender went back for another interview (the second interview), with DSC Tearne and Detective Sargent Maree. The interview was recorded and was four hours long. The offender said he did not remember where he was on 4 March 2014.
The offender suggested that the motivation for the deceased to be murdered may be due to his involvement with taking 254 kilograms of "pseudo" which was stored at a street in Berala. The offender informed the police that the deceased had a number of associates in that regard, one of which was Mr Wang as well as Peter the Serb and Mohammad Hawchar.
In the weeks prior to the murder, the offender said the deceased contacted him to talk about the missing "pseudo".
The offender said he spoke to Mr Wang, who said he wanted his "pseudo" back. The offender said he hoped to find it and he hoped to get a reward. The offender described how he went searching for the missing drugs after speaking to Mr Wang. He described Mr Wang as "a dangerous bloke" who had committed double murders. He said Mr Wang was "good, not solid but… a fit bloke… he's baldy, always clean shaven".
The offender said he picked up the deceased a few times from Casula at Peter the Serb's place where the deceased was cooking ice.
The offender also said he did not have a phone after the deceased's death because he had issues with his cousin, because of what happened to the deceased, a girl (presumably a reference to the offender's girlfriend, Eileen Ohanessian) was "busting his chops", and he just wanted to focus on his little one.
When asked if he was there when the deceased was shot, the offender said in statements again relied upon by the Crown as lies evidencing consciousness of guilt: A. Maybe, maybe not. That's where I won't say. I won't talk. That's your opinion, your assumption that I was there or wasn't there, and that's what you're trying to figure out. But honest truth - Q. No I'm asking you, were you there? A. There? I can't say. I don't, I have nothing to say about that. If I was there or not I will not say that. I told you, I will not talk.
Later in the conversation, when asked if he could still not recall what he was doing on 4 March 2014, the offender answered that he had nothing to say, and that he really did not remember.
The Crown made submissions about the offender's statements in those interviews, which I accept, as follows: On 1 December 2014 and 15 December 2014 the police interviewed the offender, on each occasion over a number of hours. The offender denied committing the murder. He told the police more lies about his involvement in the murder. He told them that the background to the murder was the deceased's involvement in the supply and manufacture of prohibited drugs. In the second interview he outlined to the police that he knew of a large drug syndicate operating in about 2012 and that whilst he was not involved in this he had assisted in relocating a person who he thought was under suspicion by the police. He nominated a Zhen Wang as being one of the persons involved in the 2012 syndicate. He nominated Wang as being a person of interest in relation to the deceased's murder. He claimed that Wang had possession of 254 kilograms of pseudoephedrine which the deceased had stolen. He claimed that Wang, knowing of the offender's friendship with the deceased, recruited the offender to secure the return of the pseudoephedrine.
The Crown gave context to that submission by the following further submission: In 2012 a Federal investigation led to the arrest of a man named Lam in possession of about 40 kilograms of methylamphetamine. That investigation targeted a Lu Hong who was charged with money laundering relating to about $424,000 located in a backpack. That investigation also targeted the deceased who was in regular contact with Lam. The investigation located in a house associated with the deceased a document apparently related to a precursor for MDMA. The investigation also targeted Wang Zhen who was not charged, but who was in contact with the deceased and Lu Hong. The offender in his interview of 15 December 2014 outlined various parts of this investigation, including the arrest of Lam. In that interview he also said that Hong was part of that investigation and that the deceased had put Hong "in Smithfield or somewhere" and that "Hong was hiding there". He also said that he had last seen Hong 3 to 4 months ago. (X47 Q568-576, 594-631). It is part of the public record that Wang had been in jail for a double murder (see R v Zhen Wang unreported NSWCCA 11 February 1994), and that the deceased had many years earlier been in jail for the supply of prohibited drugs (see R v Panagakos [2003] 138 A Crim R 538). Hong Lu was arrested in October 2014 in relation to the money laundering charge and was remanded in custody.
There was evidence that in June 2015 the offender was arrested and charged that, between 1 July 2014 and 4 August 2014, he aided and abetted Lu Hong to import just over 4 kilograms of high purity methamphetamine. The offender pleaded guilty and is awaiting sentence on this matter. It should be observed, however, that counsel for the defense correctly stated that the 2012 investigation was extensive but never treated the offender as a person of interest.

June 2015

On 4 June 2015, the police searched the offender's parents' home. The police found a firearm holster, three .380 special rounds and one Winchester brand .380 auto round in the bottom draws in a bedroom used by the offender. The offender's passport was also located in the wardrobe in that bedroom as well as a police baton. His brother was formerly a police officer and the offender said the baton was his brothers.
The offender was interviewed that day which was recorded. The offender told police that he had previously been a security guard and held a firearm license. He accepted that the rounds found in the wardrobe "could be mine, I dunno". He said he did not know who they belonged to. The offender also said that his brother and maybe his father were registered firearm owners.
Mr Bolton, the ballistics investigator, opined in one of his reports that the cartridges found at the scene of the crime and the .380 automatic calibre cartridge found in the offender's bedroom in Lidcombe (one of the four cartridges found) had similar characteristics on their bearing surfaces. However, the cartridge found in the bedroom displayed insufficient individual detail to identify or eliminate it was discharged from the same firearm that cycled the cartridges from the crime scene. The other three special calibre cartridges found in the bedroom could not have been discharged from a firearm which discharged .380 automatic calibre cartridges, noting that the firearm said to have been used to shoot the deceased discharged .380 automatic calibre cartridges.

February and March 2017

The offender was arrested on 22 February 2017. He was in custody for a short period.
The police recorded two conversations via listening devices of the offender on 17 and 19 March 2017.
On 17 March 2017, the offender was discussing the murder charge with Eileen. The offender gave two admissions as to being at the scene. He said, "shot three times in the face and once in the back of the head" it's not "a pretty sight to see something like that…when you see someone's face ripped apart and their brains and their head splattered… you understand why I went crazy…". At this stage, no photographs of the deceased had been supplied to the offender. (It may be noted that counsel for the offender provided a picture of the deceased during the sentencing hearing and submitted the picture did not equate with the offender's description to his girlfriend. I have examined the picture but the detail is insufficiently clear to accept or reject counsel's submission in that respect). The second admission was that there were two men present at the crime scene in addition to the deceased.
Additionally, his Counsel acknowledged at the beginning of the trial that the offender would not suggest that he was not present at the scene of the shooting.

Who shot Bill Panagakos?

The Crown submitted: In the context of a likely finding by the jury that the two men who approached the deceased were in a joint criminal enterprise to shoot the deceased, and in the context of the other man in that enterprise presently being unknown, and in the context of motive being less than entirely clear, a finding by Your Honour as to who it was that shot the deceased does not significantly discriminate between the two in the joint criminal enterprise in terms of culpability.
The Crown emphasised that in this matter, in contrast to the circumstances under consideration in R v Gatt, there was no evidence about the relationship of the two persons said to be in a joint criminal enterprise because the second person is not known and, therefore, no comparison could be drawn. Thus, if the offender was not found to be the shooter, it does not assist the offender because the other person was not known and there was no evidence as to the subjective features of the other person.
The Crown, nonetheless, sought the Court find beyond reasonable doubt that the offender was the shooter. The following factors were relied upon: 1. The offender's familiarity with hand guns; 2. The offender had access to the calibre of ammunition used in the shooting; 3. Given the poor lighting and what the accused said to Eileen, he was close to the deceased at the time of the shooting; and 4. Mr Hardy's evidence was that the shooter was the driver of the black SUV and the offender had access to such a car.
A primary feature of the offender's rejoinder, in this respect, was the physical appearance of the shooter. That submission depended entirely upon an acceptance of the description of the physical appearance of the shooter and the other man at the shooting (other than the deceased) given by Mr Hardy.
Having regard to my earlier review of Mr Hardy's evidence, I accept his description of the appearance of the two men present at the time of the shooting beside the deceased.
In my view, Mr Hardy's description of the shooter is so inconsistent with the physical appearance of the offender that it may not be concluded beyond reasonable doubt that the offender was the shooter. However, the description of the other taller man was consistent with the physical appearance of the offender.
There is further evidence which is inconsistent with the offender being the shooter but rather involved in a joint criminal enterprise. The following is an outline of that evidence, during which I will also draw attention to further aspects of the offender's submissions as to why he was not the shooter: 1. The offender and the deceased planned to meet in Petersham on the evening of the shooting by virtue of the telephone communication between them. 2. The offender had been careful with the use of his phone on that day. 3. There were two men present at the time of the shooting other than the deceased. They acted in the manner described by Mr Hardy. 4. The Crown correctly submitted that, given the poor lighting at the crime scene and what the offender said to Eileen, he was both present at the scene and reasonably close to the deceased at or about the time of the shooting. However, I agree with the submission for the offender that the offender's recorded conversation with Eileen does not amount to an admission as to him being the shooter. Ultimately, the admission does not make it more or less likely that he was the shooter as opposed to the other man involved in a joint criminal enterprise. 5. On Mr Hardy's evidence, the two men present in addition to the deceased moved westward along Queen Street to escape and both of them entered the getaway car. If the offender did not meet the description of the shooter then, as counsel for the offender contended, the jury must have found the offender party to a joint criminal enterprise (I note that a proposal that the offender was running along Queen Street as a bystander trying to escape meets the difficulty that he would have been escaping in the same direction as the shooter). 6. A finding that the getaway car was possessed by the offender on the evening also implicates the offender as being criminally liable for the murder. However, it does not indicate the offender was the shooter particularly in light of evidence that it was the shooter who was the driver of the getaway car. 7. I agree with the submission of the offender that the acceptance by the jury that the offender was liable for the deceased's death and that he was acting in concert with another male must result in the conclusion that evidence of flight does not assist with the determination of the offender's role. Both flight and the disposal of his phone were matters going to a consciousness of guilt. Those factors are consistent with a finding that the offender was not an innocent bystander but neutral as to whether the offender was the shooter or in some other role such as the lookout. 8. Whilst the lies given by the offender and his admissions are relevant to the drawing of inferences that the offender was criminally liable for the murder, they do not assist, by their terms, in determining whether the offender was the shooter or played a role in a joint criminal enterprise. 9. The offender's familiarity with firearms, including pistols and the fact that the offender had access to the calibre of ammunition used in the shooting does slightly increase the probability that the offender was the shooter. However, the group of persons with familiarity with firearms including pistols is not a closed group. It was not proven that this group consisted of a limited number of people.
I find that a person unknown shot the deceased and, having regard to the verdict of the jury, the offender was part of a joint criminal enterprise to shoot him. Whilst the parties made contrary submissions between their closing addresses to the jury and submissions on sentence as to whether the offender was most likely acting as a lookout, I consider that the appropriate finding as to his role is that he was not the shooter and was most likely either a lookout or being ready to provide assistance including preventing escape.
The balance of the Crown submissions as to the role or function of the offender, as described above, can wait a discussion of the remaining two issues.

Was the offence planned?

The Crown submitted that the murder involved some planning. In support of that contention, it pointed to the following features of the murder: 1. The offenders obtained a prohibited firearm, namely a self-loading prohibited weapon and ammunition. 2. Whilst there was no evidence as to what happened after the offender and deceased reached Petersham until the time of the murder, the access to and use of that style of weapon speaks against a spontaneous murder which happened whilst the two men were ostensibly celebrating the deceased's birthday. 3. The use of the getaway car. 4. The offender did not make a call on his mobile phone for a period of some hours prior to the shooting until the following morning (he did send some texts after 8.15pm but prior to the murder). 5. The murder was in the nature of an execution carried out in a very public way in the dimly lit backstreets of Petersham. 6. The background context which concerned the offender's involvement in criminal activity, notably the supply and manufacture of prohibited drugs. 7. Whilst the evidence was silent as to how long prior to the shooting the intention to kill was formed, the Crown submitted that, given the planning involved and the manner in which the deceased was publically executed, the offender had formed the intention to kill the deceased well in advance of the shooting. The Crown relied, in that respect, on Mr Hardy's evidence of two men emerging from a car and walking towards the deceased and, in the circumstances, there being no evidence of any conversation or hesitation before the shooter walked up to the deceased and executed him. 8. Whilst the shooting was at close range, the aim was nonetheless precise, consistent with an intention to kill formed much earlier.
There are factors, the subject of submissions by the offender, which point against a finding that there was planning involved in the murder.
It is unknown on the evidence whether the deceased first came into contact with his killers at the street corner or whether he had spent the preceding two hours in their company.
The offender and the deceased had been in regular communication a short time before the offence. There is no suggestion that there was any conflict or animosity between the offender and the deceased. The deceased told his wife that he was planning to go out on the evening in question to meet up with friends to celebrate his birthday. He joked about going to a brothel. It was the habit of the offender to have a drink with the deceased on his birthday. There was telephone contact between the deceased and the offender some hours before the shooting but there was no evidence of their movements between that conversation, their arrival at Petersham and the shooting at 11.13pm. Hence, the precise movement of various persons involved in the shooting until immediately prior to the shooting are unknown.
It was submitted that, if the intention was to kill the deceased from the outset, there was no reason for the offender to meet the deceased two hours before the killing with the increased risk that he would be seen in the company of the deceased and, thereby, become connected to the death, particularly when the location chosen was in proximity to a location regularly frequented by the deceased and the offender.
As to the getaway car, the offender correctly submitted that there was no connection between the occasions when the offender would borrow cars from Mr Zreika and the offender's involvement in any criminal activity. Whether or not the shooting was planned or spontaneous, the offender and his accomplice had to travel to Petersham by some mode of transport. Counsel for the offender submitted, if, hypothetically speaking, in the course of a walk to the car, the offender, the shooter and the deceased got into a dispute culminating in a decision by the two offenders to shoot the deceased, the fact that the two men then ran to the parked SUV and drove off with speed would not, without more amount to evidence of prior planning.
Further, and as I will find, the motive of the shooting is unclear.
Nonetheless, I have come to the conclusion that there was some planning in the manner in which the deceased was murdered indicating an intention to kill the deceased in advance of the shooting.
First, whether or not the shooter and the offender initially exited the "getaway" car before moving along Queen Street towards the deceased, the manner in which they approached the deceased, as conceded by counsel for the offender (if Mr Hardy's evidence was accepted as to two men walking along Queen Street and splitting), is consistent with planning, at least in the period immediately before the shooting.
Secondly, I have found the mode of death of the deceased was clearly consistent with an intention to kill. The deceased was shot violently and whilst at close range with precision. There was, on the evidence, no hesitation or verbal exchange before the shooting.
Thirdly, the shooting was undertaken with a prohibited firearm in the nature of a self-loading prohibited weapon. Whilst there was no evidence as to what happened after the offender and the deceased reached Petersham until the time of the murder, access to and use of that style of weapon is, in my view, inconsistent with a spontaneous murder.
Fourthly, the shooting had the hallmarks of an execution style murder carried out in the backstreets of Petersham.
Fifthly, the offender did not use his mobile phone from a period of some hours prior to the shooting until the following morning.
I note that I have given consideration to whether a finding may be made that the offender lured the deceased to Petersham. However, I do not consider that such a finding may be made beyond reasonable doubt.

Whether the evidence is capable of establishing any motive for the offence

The Crown accepted that the jury were directed that the Crown did not need to prove motive in order to establish a joint criminal enterprise. However, it was submitted that, on the whole of the evidence, including the offender's own statements to police, the background to the murder was the offender's association with criminals and, in particular, drug manufacture and supply. It was accepted there was no specific evidence of motive but the ongoing criminal activity feeds into a conclusion that the murder was not spontaneous, and, in fact, associated with that criminal activity.
The Crown submitted that it was difficult to assess whether there was any truth to what the offender said to police in his interviews about the background of the murder being related to dealing in or manufacturing of prohibited drugs, but there was some evidence that it may have been in the offenders own interest to retrieve the outstanding pseudoephedrine which he claimed may have been in the possession of Mr Wang or the deceased. When combined with the offender's ongoing association with others who had recent (that is in 2012) connections to large scale dealing in prohibited drugs, the Crown submitted that the Court should conclude the likely motive for the murder related to some form of dispute regarding prohibited drugs.
The Crown referred to the conversation of 29 November 2014, obtained by surveillance recording, in which the offender was talking about the murder and his prospects of being jailed and discussed with his wife whether someone else can take blame and that he was a key player, an asset, or someone who could be trusted. The Crown submitted that it was no coincidence that two days before the lengthy interview with police the offender was discussing with his wife the prospects of someone taking the blame and, in that conversation, mentions the name of a person who he had told the police was in some way connected to the 2012 Australian Federal Police investigation.
The Crown pointed, in particular, to four matters: 1. The offender acknowledged his peripheral association with those involved in large scale criminal activity in the 18 months leading up to the murder; 2. The offender said that there were large scale criminal activities going on including activities associated with the 254 kilograms of pseudoephedrine vis-à-vis Mr Wang. He admitted transporting those who were involved in what the offender said was the actual manufacture of methylamphetamine in the Western suburbs of Sydney in the weeks leading up the murder; 3. There was a motive for him to get involved in this criminal activity for his own reward; 4. Notwithstanding the lies told to police, part of the motive, in the broader context, was the offender's association with drug supply and his association with criminal activity in that respect. If the periods 2012, March 2014 and July 2014 are considered, the Court has the offender's own admissions, his acknowledgement that large scale drug supply was involved and the offence to which he had pleaded guilty.
The offender submitted that, if the Crown wished to allege that the offender's association with criminal activities is connected with the murder, they had to prove that fact beyond reasonable doubt. The Crown case, it was submitted, never rose above a suspicion or speculation as to a connection between the death of the deceased and any of the other events relied upon by the Crown.
In my view, the offender's submissions, in this respect, should be accepted for the following reasons: 1. The offender's interest in the pseudoephedrine that he alleged had been in the possession of Mr Wang or the deceased does not establish a motive for shooting the deceased because the evidence does not permit a conclusion as to how the murder of the deceased would assist the offender in taking possession of that drug unless, as the offender submitted, the location of the drug had been previously disclosed to the offender. The evidence would not permit such a conclusion. 2. Whilst the offender himself made reference to an association with persons involved in large-scale drug supply, insofar as a 2012 drug supply was concerned, there was no evidence that the police had any suspicion that the offender had an involvement in that drug organisation. 3. The offender was involved in a plan to import methamphetamine along with Mr Hong Lu (he pleaded guilty to aiding and abetting the commission of an import offence) but there was no evidence that that offence was related to the murder of the deceased. It follows that, whilst the offender had associations with persons, including the deceased, involved in drug supply, there was no evidence that at the time of the death of the deceased, the offender was engaged in drug supply or related activity or that any such conduct was connected to the murder. On the evidence, the extent of the deceased's involvement in drug supply with Mr Wang or Mr Hong Lu is unknown and, by extension, the offender's involvement in drug supply at the time of the murder is unknown. 4. In any event, these series of cascading difficulties for the Crown case on motive prevent a conclusion being reached that the motive for the murder related to the connection between the offender and commercial drug supply or other criminal activity. Just what the offender was a key player in, or an asset for (as he described himself in his conversation of 29 November 2014), is unclear. That he would have someone else take the blame for the murder does have implications in terms of a consciousness of guilt, but it does not establish the relevant connections as to the motive the Crown sought to rely upon for the purposes of sentencing.
Thus, whilst the factors alluded to by the Crown may constitute a basis for suspicion, they do not, on the evidence in this matter, provide a basis for a finding as to the motive for the murder. The motive remains unclear.

Objective Seriousness

I turn now to evaluate the objective seriousness of the offence.
The offender acknowledged that, in assessing the objective seriousness for the offence of murder, it needed to be acknowledged from the outset that any murder involves a high level of moral culpability, such that an assessment as to where a particular offence sits by comparison to other cases, must start from a high level of criminality. I agree.
In assessing the objective seriousness of the offence, I have taken into account that the firearm used was lethal in the sense there was a self-loading pistol, possession of which was prohibited. I have also had regard to the fact that the murder was committed in company. The shooting had the hallmarks of an execution.
Regard must be had to the fact that the shooting took place on a suburban street and involved a high level of violence. I do not accept the submission of the offender that such consideration may be substantially diminished because the shooting took place late at night at a time where there was no other foot traffic and so the risk of harm to an innocent bystander was reduced. Mr Hardy was on the street and was close to the shooting. Whilst Ms Quinlan's account of events at or after the time of the shooting is doubtful, there is sufficient evidence to indicate she was present at the time of the shooting. There were a large number of persons in nearby premises that later emerged soon after the shooting and may have been placed in danger. One of the shots fired created a surface wound in the deceased and, therefore, was unrestricted in its movement, in a public space. It is possible that it hit a nearby residence (although the chemical tests were, in that respect, inconclusive).
However, I do not accept the submission of the Crown that the finding that the offender was not the shooter did not diminish his criminality because the role and function of the two men involved in the shooting was unclear. The Crown was unable to prove beyond reasonable doubt that the offender was the shooter. In the light of that finding and the evidence as to a joint criminal enterprise, the offender's role in the joint criminal enterprise, was of a different and lesser nature. In my view, this conclusion should result in the offender being found to have a lower level of objective criminality than the shooter: R v Taufahema [2004] NSWSC 833 at [49] and KR v R [2012] NSWCCA 32 at [19].
I have come to the conclusion that, whilst the evidence is silent as to how long prior to the shooting the intention to kill was formed, there was some planning involved such that the manner in which the deceased was murdered indicated an intention to kill the deceased in advance of the shooting.
Bearing in mind these considerations, I consider that the offender's conduct was about the mid-range of objective seriousness.

Aggravating factors

I have considered the numerous aggravating and mitigating circumstances listed in s 21A of the Sentencing Act, which a sentencing Court is required to take into account.
The Crown referred in particular to two aggravating factors for the purposes of s 21A(2)(c) and (e) of the Sentencing Act. However, both of those matters, namely, that the offence involved the use of a weapon and the offence was committed in company, have been taken into account for the purposes of the objective seriousness of the offence. They may not in those circumstances be treated as aggravating factors as to do so would be to double count those factors.

Subjective Features

The offender submitted that at the time of the offence he was 33 years of age and was now 38 years of age. He was married with a young child and at the time of the offence was heavily involved in the care and support of his daughter. He had the support of his mother, brother and father who attended large proportions of the trial. His wife was prohibited by Court orders from visiting him.
I accept the submission that the offender enjoys the support from his family and will continue to do so upon his release.
The offender was gainfully employed at the time of the offence and has worked in various occupations over time and owned a business.
These are not particularly substantial subjective considerations, however, especially when seen in light of the offender's criminal record to which I will now turn.

Criminal History

The offender has a record of previous convictions. The offending includes violence and dishonesty. He has twice been imprisoned for violence offences, being a robbery in company for which he was imprisoned in 2002 and an assault occasioning actual bodily harm in company for which he was imprisoned in 2009. The 2002 robbery in company was a serious example of that category of offence in that the offender was one of two men who used a loaded handgun during the commission of the offence. The 2009 matter was also a serious example of that category of offence. Emphasis should be given to the fact that, in each of these matters, the offender was in the company of others.
The offender submitted that the charges of robbery in company and assault occasioning actual bodily harm occurred many years prior to the present offence and that in the five years after his release from jail for the offence of assault occasioning actual bodily harm, the offender was gainfully employed and living a law-abiding life.
Whilst that submission may be accepted on its face, its force is significantly reduced by the offender's later offences.
In my view, as the Crown contended, the offender's previous record disentitles him to leniency.

Personal Deterrence

Bearing in mind those considerations, I consider that personal deterrence should feature substantially in the sentencing of the offender.

Prospect of Rehabilitation and Likelihood of Re-offending

Three aspects of the evidence in this matter must result in the conclusion that the prospects for rehabilitation in the offender's case are low. First, there is the prior record of serious violence. Secondly, his offending continued after the murder. Thirdly, the covert recordings of the offender indicate that there is an absence of remorse (counsel for the offender made no submissions on remorse).

Special Circumstances

I am also satisfied that the evidence establishes that the offender does present a real risk of engaging in further violent offending, once released on parole. There can thus be no question that he will then require close and careful supervision.
In my assessment, however, given the length of the sentence which must necessarily be imposed upon the offender, the result of the statutory ratio will provide him with a suitable period for such supervision.
In the result, there is no need for any finding of special circumstances.

Other Aspects

In sentencing the offender I have been mindful of the two legislative guideposts of the maximum sentence and the standard non-parole period (Muldrock at [27]) together with factors bearing upon the objective seriousness of the offence and subjective features.
The offender pleaded guilty to an unrelated importation charge. This raises the question of totality but that is a matter properly for the consideration of the District Court of NSW in sentencing with respect to the importation charge.
The offender had been in custody over two periods from the time of his arrest on 4 March 2014 totalling 1 year, 4 months, 2 weeks and 5 days by the time of the sentencing hearing in this matter. My sentence will take into account the time served by the offender by the date fixed for the commencement of the sentence.

Imposition of Sentence

Mr Safarjalani could you please stand.
For the reasons I have given, I now make the following orders.
I sentence you to imprisonment for a non-parole period of 20 years commencing on 13 September 2017 and expiring on 12 September 2037 and the balance of the term of 6 years and 8 months commencing on 13 September 2037 and expiring on 12 May 2044.
Thus, you will be eligible for release on parole at the expiry of the non-parole period on 12 September 2037. 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: 15 February 2019

Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014(NSW)

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