R v Safi

THE CIRCUMSTANCES OF THE OFFENDING 7I am required to make findings of fact in relation to the circumstances of the offending. Such findings must be consistent with the jury's verdict. In particular, I must accept such facts as are established by that verdict, and I must not determine any factual issue in a way which is not consistent with it: R v Isaacs (1997) 41 NSWLR 374. The Crown bears the onus of satisfying me, beyond reasonable doubt, of any finding of fact against the offender. The offender bears the onus of proving factual matters in mitigation, on the balance of probabilities. 8The Crown case at trial was that the deceased was murdered in the course of the offender and his brother, Mitchell Johnson, carrying out a joint criminal enterprise to assault the deceased. There was no direct evidence of the deceased's murder. The Crown relied on a series of circumstances, along with evidence of admissions said to have been made by the offender to various persons, in order to prove its case. 9Bearing in mind all of these matters I am satisfied beyond reasonable doubt that the circumstances of the offending were as follows. 10In June 2010 four Aboriginal males attended the offender's premises in Whalan offering to sell him a 2008 model BMW X5 motor vehicle for a sum of $2,000.00. The offender had previously spent some years working in the motor vehicle industry and in fact sold cars at one point. From time to time he would also have cars for sale in his front yard. As a consequence of this experience, the offender was well aware of the fact that the value of the vehicle which had been offered to him for sale was well in excess of $2,000.00. In these circumstances he came to the view that the vehicle must have been stolen. 11Accordingly, the offender telephoned the police and reported the matter. The police arrived at his premises shortly afterwards and arrested the four males. The offender provided a statement to the police about what had occurred. 12In mid to late July 2010, after the incident outlined above, the deceased attended the offender's premises in the company of two other males. The offender had not met the deceased prior to that time and in fact knew nothing of him. Having introduced himself as "Ayman Darwiche", the deceased said to the offender: "I'm here on behalf of the sood". 13"Sood" is apparently an Arabic term for "black". This led the offender to conclude that the deceased was referring to the four aboriginal males who had previously been arrested at his home in June. At that point the following conversation ensued between the deceased and the offender: Deceased: All I'm here for is the debt. Offender: What debt? Deceased: The BMW debt. Offender: Its got nothing to do with me. Deceased: I'm in a hurry now, but I'll be back tomorrow and we'll talk. 14The deceased returned the following day and the following conversation with the offender ensued: Deceased: We are here to collect money or cars. You just let us know which one. Offender: Why should I be paying for something that isn't my debt? Its got nothing to do with me. Deceased: You either give me money or the cars. 15An argument followed, in the course of which the deceased produced a gun and threatened the offender with it. He then told the offender to remove a gold chain the offender was wearing at the time. The deceased took the chain and told the offender he would be back the following day. 16The deceased returned to the offender's premises on the next day and the following conversation ensued: Deceased: Get the cars ready, I'm taking them now. Offender: Get a tow truck. They need a tow truck. They won't start. Deceased: Alright, I'm going to get a tow truck and I'll be back. 17The deceased left a short time later. The offender then barricaded, and left, his premises. He did so because he feared the deceased. He went to live with his then girlfriend, Gina Schembri. He told Ms Schembri that the deceased had "put a gun to his head" and had "taken the chain off him". He also told her that he "wasn't going to stop until he got the chain back". 18There was telephone contact between the deceased and the offender around this time, in the course of which the deceased threatened the offender (inter alia) that he would "take his cars and his house". Around the same time Ms Schembri overheard the offender speaking to a person on the phone and saying: "I'm not going to stop until I get the chain back. If you don't give it back, I'm going to hurt ya." 19I am satisfied that the offender was speaking to the deceased when he said those words. 20At about this time Ms Schembri's twin sister, Angela Schembri, also had a conversation with the offender in which he said that: " .... some bloke, came over to get the money. When he didn't recover any money .... he took the chain ...". 21In the early hours of 25 July 2010 police attended the offender's premises in response to a radio message reporting that an offence of break enter and steal was in progress. When the police arrived, they saw the deceased at the rear of the offender's premises attempting to open a window. The deceased was arrested and taken to the police station. 22Senior Constable Grant, who was one of the arresting officers, then spoke with the offender. He informed the offender of the deceased's arrest and told him that the deceased had claimed that he (the deceased) was a friend of the offender. The offender responded by saying: "He's not a friend of mine. He's actually made threats against me". 23When Senior Constable Grant asked the offender if he would be prepared to make a statement about the matter, he replied: "No, I'll look after it myself". 24The offender's neighbour, Doug Piccinelli, also spoke to the offender about the attempt by the deceased to break into his home. When he asked the offender why he did not wish to proceed with the matter, the offender said: "Don't worry. I'll fix him myself". 25The deceased was released from custody on 25 July 2010. He then telephoned the offender and said: "I got locked up for you overnight. I'm in Penrith now. I'm coming to Mt Druitt to pick up the cars. Have them ready". 26This is consistent with the evidence given at the trial by Jodi Reynolds, an acquaintance of the deceased, that when she last saw the deceased he had said to her that he "had to pick up some cars" from premises located in the same street as those of the offender. The deceased and the offender were in telephone contact with each other during the course of the afternoon of 25 July 2010. 27At some time shortly after the attempted break in of his premises, the offender was driven to Gina Schembri's home by his brother, Mitchell Johnson. On that occasion the offender said to Ms. Schembri that they had "bashed" the deceased and had then taken him to a "FOB's house" and left him there. I am satisfied that the reference to "they" was a reference to the offender and his brother. 28The offender also told Angela Schembri that he had seen the deceased and "bashed him to death and got his chain back". 29Approximately two days after the attempted break in at the offender's premises, Mr Piccinelli spoke with the offender in the presence of his brother. On that occasion, the offender told Mr Piccinelli that the person who had stolen his chain had been "fixed". The offender then walked inside his premises before returning in possession of a baseball bat. He held that bat in one hand and used it to repeatedly tap the palm of his other hand. Nothing was specifically said about it. 30On 16 March 2012 human remains, later identified as those of the deceased, were found in bushland at Londonderry. It is not part of the Crown case that the offender played any part in depositing the deceased's body in the bushland. 31The deceased was last seen alive on 25 July 2010. Consistent with what he had said to Ms Reynolds, I am satisfied that the deceased went to the offender's premises at some time during the afternoon or evening of that day. In light of what the offender said to Gina Schembri, Angela Schembri and Doug Piccinelli after that time, I am satisfied that the deceased was killed when he went to the offender's premises. 32I should note that the Crown called evidence at the trial from Jeffrey Small, an acquaintance of the offender. Mr Small told the Court (inter alia) that he had been at the offender's premises on one occasion when he saw a man, identified as the deceased, arrive at the premises and have an argument with the offender. Mr Small also gave evidence that he saw a motor vehicle belonging to the offender's brother at the premises on that same day, on the back seat of which he observed traces of blood. 33Mr Small's evidence was inconsistent, in material respects, with what he had told police. Some of his evidence in chief was entirely omitted from an earlier statement. He conceded that his memory was not good. He also conceded that he had discussed aspects of the incident leading to the offender's arrest with Gina Schembri, and possibly with Angela Schembri. 34Overall, I found Mr Small's evidence to be quite unreliable. None of my factual findings as to the circumstances of the offending are based, in any way, upon his evidence. 35The Crown also called evidence from Mr Small's father, Garry Small, who gave evidence of an admission said to have been made by the offender, to the effect that he had "kicked the shit" out of the deceased. The circumstances in which that statement was said to have been made were, in my view, inherently unlikely for a variety of reasons and none of my factual findings are based upon an acceptance of it. 36I am satisfied that the deceased was killed as a consequence of, and in the course of, the offender and his brother carrying out the joint criminal enterprise upon which the Crown relied. 37Three principal issues arise as to the circumstances of the offending, namely whether: (i)a baseball bat was used; (ii)the offending was planned; and (iii)the offender intended to kill the deceased, or whether he intended to inflict grievous bodily harm on him. 38As to the first of those matters, the Crown relied upon the evidence of Mr Piccinelli (at [29] above) to sustain an inference that a baseball bat was used in the attack on the deceased. I accept Mr Piccinelli's evidence that the offender told him that he had "fixed" the deceased. I also accept that having said that, the offender retrieved a baseball bat from his premises and showed it to Mr Piccinelli, "tapping" it in the manner Mr Piccinelli described. Viewed in this way, there was a clear connection between the "fixing" of the deceased (as the offender described it) and the use of the baseball bat which the offender exhibited to Mr Piccinelli. If there was no such connection, the offender would have had no reason to retrieve the baseball bat at all. In these circumstances I am satisfied that a baseball bat was used in the attack on the deceased. That is an aggravating factor having regard to s. 21A(2)(c) of the Sentencing Act although the evidence does not permit me to determine whether the bat was used by the offender, by his brother, or by both of them. 39As to the second of those matters, statements made by the offender to Senior Constable Grant and Mr Piccinelli around the time of the attempted break in to his premises are consistent with the offender wanting to exact some retribution upon the deceased for what had previously occurred between them. However, in circumstances where the evidence does not establish the precise circumstances in which the deceased and the offender came to be together on the occasion when the deceased was killed, I am unable to determine, one way or the other, whether the offending was planned. 40As to the third of those matters the Crown pointed to the evidence of Angela Schembri that the offender had told her that he bashed the deceased "to death". It was submitted that this was consistent with an intention on the part of the offender to kill the deceased. As I understood it, the Crown put this as the primary, if not the only, evidence which supported such a conclusion. Whilst I accept that this was said, it was a statement which was made after the event. It does not, in my view, establish beyond reasonable doubt that the offender intended to kill the deceased at the time of the attack. It is a statement of what occurred. It is not a statement that what occurred was in fact intended by the offender. In these circumstances I am not satisfied that the offender intended to kill the deceased. I am satisfied from other statements made by the offender to Gina Schembri, Angela Schembri and Mr Piccinelli that the offender intended to inflict grievous bodily harm on the deceased. 41The previous dealings between the deceased and the offender, although not amounting to provocation as such, necessarily form part of the background to the offending. The evidence of the deceased's dealings with the offender leave me in no doubt that the deceased was a person prone to aggression and violence. There was other evidence given in the trial, notably that of Jodi Reynolds, which satisfies me that the deceased was also prone to attempting to extort money from people without cause. There was also some evidence of the deceased having been caught up in what was referred to as a "drug rip" involving members of an outlaw motor cycle gang. On the evidence before the court, the term "stand over man" would not be an inapposite description of the deceased. 42I am satisfied that the deceased, without any justification at all, had been antagonistic and threatening towards the offender in the period leading up to his death. I am also satisfied that the offender, as a result of the deceased's behaviour towards him, was sufficiently concerned for his personal safety to move from his home for a period of time. 43However the deceased's behaviour towards the offender provides no justification whatsoever for what ultimately occurred. 44The circumstances which culminated in the deceased's death had their origins in the occasion on which the offender was visited by people wanting to sell him a stolen motor vehicle. The offender brought that incident to the attention of the police and allowed them to deal with it by arresting those responsible. In doing so, the offender demonstrated an understanding and appreciation of the proper course to be taken when confronted by criminal activity. The deceased's death represents the end result of the offender's decision to take a different course when confronted by the deceased's threatening behaviour towards him. That different course involved the offender taking the matter into his own hands. That is not the role of any member of the community when faced with such a situation. 45In all of the circumstances, I am satisfied that the objective seriousness of the offending falls below the mid range, a proposition with which the Crown did not take any real issue.

THE OFFENDER'S SUBJECTIVE CASE 46A report of John Machlin, Clinical Psychologist, who examined the offender on 17 July 2014 was tendered on sentence. Although Mr Machlin identified a possibility that the offender had a paranoid personality disorder, he did not reach a concluded diagnosis and identified other investigations which would be required to be undertaken in order for such a possibility to be confirmed. Mr Machlin reported that there were no signs of any other mental health condition or clinical disorder. 47In these circumstances, counsel for the offender relied on Mr Machlin's report as providing some background to the offender's personal circumstances. In that regard, I note the following. 48The offender is now 37 years of age. He is one of five children born to Lebanese parents in Sydney. He has apparently become distant from some members of his family since his childhood, although he described his relationship with his family throughout his childhood as good. He appears to have the continuing support of his mother. He became engaged in 2011 and married in July 2012. His wife also remains supportive of him and visits him regularly. 49The offender was educated to Year 12. He has had various employment positions in the motor vehicle industry, including conducting a hire car business as well as a business selling motor vehicles. The offender reported to Mr Machlin that as a consequence of his incarceration, he has lost such assets as he had. 50Mr Machlin reported that the offender "maintains his innocence" and that he had expressed "indignation" about aspects of his case. Mr Machlin also reported that the offender had been assaulted whilst in custody. However, counsel for the offender made it clear that he did not submit that this incident constituted some form of extra-curial punishment, nor did he submit that the offender's conditions of custody were rendered more onerous as a result. 51In terms of the offender's subjective case two matters of particular significance arise. 52Firstly, although the offender has a criminal history, it consists generally of driving and dishonesty offences which are of a relatively minor nature. Importantly, there is nothing within the offender's criminal history in terms of previous violent offending. The Crown conceded that this was a mitigating factor in terms of s. 21A(3)(e) of the Sentencing Act. 53The second matter concerns the offender's prospects of rehabilitation. I have previously noted the relevant aspects of Mr Machlin's report. It follows from the offender's continued statements of innocence, and his reported "indignation", that he has expressed no remorse for the offending of which the jury found him guilty. 54An offender who is found guilty after a trial, and who does not thereafter acknowledge his guilt, is not automatically deprived of a finding that he or she has good prospects of rehabilitation: BP v R [2010] NSWCCA 159 at [84] per Johnson J (with whom Hodgson JA and Rothman J agreed) citing Alseedi v R [2009] NSWCCA 185 at [65] and Ali v R [2010] NSWCCA 35 at [48]. However, as Johnson J pointed out, remorse will be a major factor in determining whether an offender is unlikely to re-offend and has good prospects of rehabilitation. The absence of such remorse may render it difficult to make such a determination: R v MAK; R v MSK [2006] NSWCCA 381 at [41]. 55In my view, there are a number of matters which bear directly upon this question. Firstly, at 37 years of age the offender is a relatively young man. Secondly, he appears to have had a reasonably stable employment history. Thirdly, he appears to enjoy the support of his wife, as well as of his mother. Fourthly, he has no history of violent offending. In determining the offender's prospects of rehabilitation, and in considering the likelihood of re-offending, it is necessary to balance these factors against the fact that there is no expressed remorse. 56In Alseedi (supra) Giles JA (with whom Hidden and McCallum JJ agreed) stressed that there can be rehabilitation without confession. Notwithstanding the absence of any remorse, the factors I have identified satisfy me that the offender has generally good prospects of rehabilitation and is unlikely to reoffend.

CONCLUSION 57The offender was arrested on 30 October 2012. He has been detained in custody since that time solely in respect of the present offence. The parties have agreed that any sentence should be backdated accordingly. 58I make the following orders: (1)The offender is sentenced to a non-parole period of 17 years imprisonment commencing on 30 October 2012 and expiring on 29 October 2029 with an additional term of 5 years and 8 months imprisonment commencing on 30 October 2029 and expiring on 29 June 2035. (2)The total sentence is one of 22 years and 8 months imprisonment. (3)The offender will be eligible for parole on 29 October 2029 and his sentence will expire on 29 June 2035.

Amendments 07 August 2024 - Publication restriction lifted. 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: 07 August 2024