R v Safetli

Supreme Court of NSW|2013-07-05|Before: Latham J

Solicitors Solicitor for Public Prosecutions - (Crown) Nyman Gibson Stewart - (Offender) File Number(s): 2010/339091

SENTENCE

The offender, Haissam Safetli, pleaded guilty in the Local Court to the murder of Michael McGurk on 3 September 2009. The offender adhered to that plea in this Court on 5 July 2013. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years.
The offender is entitled to the maximum discount for the utilitarian value of his pleas of guilty and the contrition inherent in those pleas.
The following agreed facts outline the circumstances leading up to the victim's murder and the role played by this offender. These facts have been, to a significant extent, recounted in the sentencing of Fortunato Gattellari and Senad Kaminic.

The Basis of the Offender's Liability, the Objective Gravity of the Offences and the Offender's Assistance

The offender is to be sentenced on the basis that he participated directly in the execution style murder of a man, in return for payment. The fact that the Crown is not able to refute the offender's account that it was Estephan who actually shot the victim does not, in my view, materially affect the offender's objective culpability for the murder.
From the moment when Gattellari pressed the offender to organise the victim's murder, the offender played an active and sustained part in the undertaking. The offender negotiated the price to be paid, and agreed to threaten the victim's wife after the murder was carried out. Over four months, the offender attempted to recruit others to carry out the murder and ultimately agreed to kill the victim himself. The offender recruited Estephan, paid him for the purchase of the rifle, and took all necessary steps to kill the victim on 18 August 2009. When that attempt failed, the offender renewed his efforts.
Together with Estephan, he modified the weapon, and test-fired it. The use of the offender's vehicle (with stolen number plates) and the surveillance of the victim's home for three hours on the day of the murder attest to the offender's dedication to his task. In the months after the murder, the offender apparently had no difficulty accepting payment for the murder in multiple instalments.
A deliberate killing for payment has always been regarded as potentially within the worst category of the offence of murder : see R v King (1998) 99 A Crim R 288. In this case, the victim was shot in the presence of his 9-year-old son, outside his family home. One does not need confirmation of the profound effect such an event would have on a child and every other member of the family.
Eleven months after the murder, the offender continued the offending by negotiating a further substantial sum of money for the intimidation of Mrs McGurk. Notwithstanding that it is submitted that this offence was not to involve any actual violence, the victim's wife must have been placed in considerable fear by the utterance of the threat, which referred to her late husband as a thief. By implication, the same fate potentially awaited her if she did not pay.
The maximum penalty for the intimidation offence in the circumstances is 2 years' imprisonment. I regard it as deserving of a penalty towards the top of that range.
The police investigation of the murder included the interception of telephone services used by Medich, Gattellari, Kaminic, the offender and Estephan in the months following 16 December 2009. In mid June 2010, police installed surveillance devices in the offender's home which captured his admissions to family members of his involvement in the murder and the intimidation of Mrs McGurk.
Having been made aware in early September 2010 of the police investigation into his involvement in the murder, on 9 September 2010 the offender approached New South Wales police about his and others' involvement in the murder of the victim. At that time, Estephan and Estephan's girlfriend were providing induced statements to police.
Between 13 September 2010 and 29 November 2011, the offender provided assistance to police by way of eleven induced statements outlining his role and the role of others in the murder of the victim. The offender also gave evidence to the New South Wales Crime Commission. The offender's information led the police to the recovery of the murder weapon and of the vehicle used on the day of the murder.
In various conversations recorded between 15 September and 12 October 2010, Gattellari, the offender and Kaminic discussed the pressure arising out of the New South Wales Crime Commission hearings which were then on foot. Gattellari and Kaminic attempted to persuade the offender to "take the rap" for all of them for the murder by making a handwritten confession excluding their involvement. In return they promised to fund his defence and look after his family. The offender participated in these conversations on behalf of New South Wales police.
The offender's participation in these covert operations significantly contributed to the arrest of Gattellari and Kaminic. Gattellari and Kaminic inculpated themselves in the course of the operation. The evidence obtained from the offender also assisted in the prosecution of Estephan and to a lesser but significant extent, in the prosecution of Medich.
Whether the offender's assistance in the covertly recorded conversations was the impetus for the pleas of guilty from Gattellari on 7 September 2012 and Kaminic on 16 August 2012 is difficult to assess. It is sufficient to observe that the offender's assistance in that regard and his future assistance represented by his undertaking to give evidence against Medich and Estephan is of a very high order and that it is exceptional in that respect. It is accepted that the offender's proposed evidence is crucial to the case against Estephan and that the offender placed himself at risk of physical harm by his co-operation with police.
However, the fact that the offender maintained his plea of not guilty for almost three years (from October 2010 until July 2013) and only ever provided induced statements does detract somewhat from the force of the submission that his disclosure of his own criminality was unqualified. None of that material was capable of being used in any prosecution against him.
Despite the offender's senior counsel's submission that the offender is entitled to an "Ellis discount" for voluntarily disclosing his own criminality, I do not regard the offender's assistance or co-operation with the police investigation as within the realms of the principles established by R v Ellis (1986) 6 NSWLR 603.
In Lewins v R [2007] NSWCCA 189, Howie J said (Basten JA and Grove J agreeing) :- 15 R v Ellis (1986) 6 NSWLR 603 was a quite exceptional case where a person who had committed seven armed robberies confessed his involvement in those offences to a minister of religion and then to police in circumstances where the police had not the slightest suspicion of his involvement in any of them. Street CJ, after referring to the effects of a plea of guilty, stated at 604: "When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." 16 Another case where such leniency has been given very significant weight was R v Dodd (1991) 57 A Crim R 349. There the offender voluntarily walked into a police station and confessed to the manslaughter of a woman some ten years after the event and at a time when there was no chance of his guilt being discovered. Yet this Court held, allowing a Crown appeal, that a sentence commensurate with the objective seriousness of the offence had to be imposed notwithstanding the leniency to which the offender was entitled. 17 There is no decision of this Court that I have been able to discover where a separate quantified discount has been applied under the Ellis principle even where quantified discounts were allowed for the plea and other assistance. In Ryan v The Queen (2001) 206 CLR 267 McHugh J stated (footnotes omitted): [15] ....................The statement in Ellis that "the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency" is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case." 18 Although the leniency referred to in these decisions extends to those cases where the offender volunteers additional criminality otherwise unknown to the police, the extent of the leniency will obviously not be of the same significance as in those cases where the police are unaware of any criminal offences committed by the offender. It is a matter of degree. In some cases the known criminality might be so great that little leniency can be shown for the further offences revealed by the offender.
Here, the offender was well and truly a target of the police investigation before his disclosures. This was not an admission of otherwise unknown guilt, where there was no chance of its discovery. In my view, the discount for the offender's past and future assistance ought not be increased further than is necessary to reflect the level of that assistance. In saying this, I do not mean to indicate that it is ever appropriate to quantify an "Ellis discount". The disclosure of otherwise unknown guilt only entitles an offender to an extension of leniency in the broad sense.
In all of the circumstances, the offender's assistance coupled with his pleas of guilty warrant a discount of 60%. Of the 35% attributable to assistance, his past assistance warrants a discount of 15% and his future assistance warrants a discount of 20%.

Subjective Circumstances

The offender is presently 46 years of age. He was married for 17 years and separated from his wife four years ago. He has a 19-year-old daughter and a 13-year-old son. He was the chief executive officer of an accounting company.
The offender was born in Lebanon, migrated to Australia with his family at the age of 6 months, but returned to Lebanon when he was about 9 years of age. His parents were wealthy. For that reason they became targets during the civil war in Lebanon. On one occasion, he was taken to the basement by armed soldiers with his brother and older sister. The family expected to be killed but was saved by the intervention of a neighbour. He fled back to Australia in the company of his siblings, leaving his parents behind. He was then raised by his uncle in Sydney and did not see his parents for almost 2 years when he was about 11 years of age. The offender's youngest sister remained in Lebanon.
The offender's father was violent towards him and towards the offender's mother and siblings. The offender's father left the family when the offender was 16. The offender did not have a relationship with his father who has since died.
The offender attended Punchbowl Public School and Cabramatta High School to Year 12. He is described as very intelligent with no behavioural problems as a child. He studied electrical engineering and mechanical engineering at university and subsequently worked in a tyre business and as an entrepreneur, earning his first million dollars at the age of 19.
The offender is reportedly a self-made man who amassed an empire of properties and other assets worth in the order of $50 million by his mid-30s. He worked extremely hard throughout his life, until his wife left the marriage for the first time approximately 16 years ago. The offender then began selling off his assets below their market value. He reconciled with his wife about eight months later. However, there was ongoing conflict in the marriage, culminating in the discovery that his wife was having an affair with a fellow teacher. The offender separated from his wife in 2008 following a second affair whilst his wife was training as a Corrective Services Officer.
The offender reports a history of emotional problems and high levels of anxiety throughout his life. He describes episodes of distress, some of which were precipitated by heavy drinking. He provided examples to his examining psychiatrist of periods of disassociation under stress, where he would have no recollection of how he came to be in a given location.
The offender was admitted to the St John of God Hospital in North Richmond in April 2005 for two weeks and in November 2009 for one week for treatment of apparent post-traumatic stress disorder (PTSD), depression and alcohol abuse. He was also diagnosed with a narcissistic personality disorder. His treating general practitioner prescribed a combination of antidepressants and mood stabilisers. The prescribed doses were well above the recommended maximum. He remained on these medications between 2005 and February 2010. He was under the care of Dr Jackman, a clinical psychologist, from about September 2009. Dr Jackman continues to see the offender on a monthly basis in custody.
The offender contemplated self harm between 2008 and 2010, including about ten incidents where he either cut himself or took an overdose of medication. At that time he was not functioning well, quitting his job with a national accounting firm and apparently assaulting one of his business partners on impulse.
The offender has a history of cannabis abuse since the age of 30. His abuse of alcohol includes periods of heavy drinking prior to his admission to the St John of God Hospital in 2005, followed by a relapse in 2008 and throughout 2009.
Since coming into custody, there were three or four occasions when the offender was placed in a "safe cell" owing to a risk of self harm. Presently there is no indication of any impairment to his cognitive functions. The offender has insight into his mental health and substance abuse issues. He is motivated to remain in therapy to address his problems.
Dr Furst, in his report of 6 July 2012, noted that the offender was depressed, struggling with insomnia and drinking and smoking cannabis to excess shortly prior to the commission of the murder. The offender claimed to Dr Furst that he was reluctant to go ahead with the killing but was under pressure from Gattellari. The offender reported to Dr Furst that he was "stuck in the middle" and that he "tried everything to get out of it".
Dr Furst considered that there was some corroboration that the offender was emotionally disturbed at the time of the murder, most notably the admission to St John of God Hospital on 10 November 2009 when the offender presented with increased symptoms of PTSD that included anger, dissociative episodes, depressed mood, feelings of hopelessness, poor motivation and poor concentration. The offender reported feeling suicidal for about four weeks prior to his admission.
In Dr Furst's view, the presence of his PTSD and high levels of anxiety and depression "represent significant mitigating factors". Dr Furst describes the offender as "remorseful". The offender continues on antidepressant medication. The offender's insight into his psychiatric and childhood issues, together with the support that he enjoys from members of his immediate family, provide him with "a good prognosis for the future".
With respect to Dr Furst, it is difficult to reconcile the offender's statements to the effect that he felt unable to withdraw from the offence on the one hand, with his superior intelligence and sustained course of conduct on the other hand. The offender had sufficient presence of mind to apply himself to the negotiation of a price for the murder and for the intimidation offence. In my view, the offender's psychiatric condition may have clouded his judgment in some respects, but could not have impacted upon the offender's capacity to determine right from wrong and to make decisions accordingly.
Similarly, it is difficult to determine the extent of the offender's remorse for the offences, as opposed to the consequences of that offending. The offender's expressions of remorse to Dr Furst and to others, such as they are, focus principally upon the effect that the offences have had upon the offender's life and concern for his own welfare. The offender's approach to police followed upon the realisation that he was under investigation. In that respect, it was a calculated decision to obtain the best outcome, rather than a spontaneous act borne of contrition.
The offender's prior good character is to his credit. He has no criminal history and is described as a generous, kind and loving father, sibling and friend. The offender's capacity for compassion towards others as described in Exhibit 2 stands in stark contrast to the offender's role in the murder of Mr McGuirk.
In my view, the offender's moral culpability is only marginally distinguishable from that of Gattellari. I accept that his prospects of rehabilitation are sound and that his incarceration in protection will be onerous. However, I decline to find special circumstances on that basis for the reasons expressed below.

Sentence

Taking all of the objective and subjective factors into account, the following sentences are imposed.
On the intimidation charge, but for the offender's assistance, a sentence of 20 months is appropriate. Applying the stipulated discount results in a sentence of 12 months' imprisonment. Given that some minor degree of accumulation is called for, and having regard to the totality of the offender's criminality, I would impose a fixed term of 6 months' imprisonment for this offence.
On the murder charge, but for the offender's past and future assistance, a sentence of 22 years' imprisonment is appropriate. Applying the stipulated discount results in a sentence of 9 years' imprisonment. I find special circumstances on the basis that the accumulation of the sentence for murder upon the sentence for the intimidation offence results in an aggregate non-parole period that is disproportionate to the aggregate term. However, allowing for that adjustment, any lesser period in custody would be unreasonably disproportionate to the offences.
Haissam Safetli, on the charge of intimidation pursuant to the s 166 certificate, you are convicted. You are sentenced to a fixed term of 6 months, to date from 13 October 2010, expiring 12 April 2011.
You are convicted of the murder of Michael McGurk. You are sentenced to a non-parole period of 6 years and 6 months to date from 13 April 2011, expiring 12 October 2017. The balance of term expires 12 April 2020. You are eligible for release on 13 October 2017.

Amendments 03 May 2018 - Judgment restricted during co-offender's trial, which is now complete. 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: 03 May 2018

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