R v Spania

COUNSEL : K McKay (Crown) I McClintock SC (Defence)

SOLICITORS : Solicitor for Public Prosecutions (Crown) Nyman Gibson Stewart (Defence)

•     IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION
      CRIMINAL LIST
  

REMARKS ON SENTENCE 1 HIS HONOUR: The offender, Malik Spania, was committed to this Court for trial on the charge that he murdered Tony Barkho on 26 September 2007 at Fairfield. He pleaded not guilty and his trial was fixed to begin on 1 September 2008. On that day, the offender withdrew his instructions from trial counsel and the trial had to be adjourned. It was fixed to commence on 2 February 2009. On that day, the offender entered a plea of guilty to the charge and asked the Court to take into account further offences pursuant to the provisions of s 32 Crimes (Sentencing Procedure) Act 1999. I will deal with them later in these remarks. 2 The offender and the deceased were brothers, aged respectively 45 and 53 years at the time of the offence. The offender lived with another brother, Reno Barkho, at Smithfield. According to the offender, his relationship with the deceased was never good. He described the deceased's behaviour towards him as abusive, annoying and tormenting. In the months before the offence, the deceased and his five-year-old son, whom I shall call SB, visited the offender's unit at least once a day. The offender apparently requested that the deceased visit only when their brother, Reno, was home. 3 Shortly before 2.45pm on 26 September 2007, the deceased went to the offender's unit with SB. The deceased knocked on the door but the offender did not answer immediately as he was in the shower. Upon hearing the door, he took a towel and went to the front door. He could hear the deceased yelling and swearing at him to open up. He opened the door and the deceased and SB entered. The offender asked the deceased to leave because their brother, Reno, was not home. The deceased refused to leave and sat down in the lounge room with SB. They turned on the television. The offender became angry at the deceased and went into his bedroom. He dressed and took a .22 calibre Jennings semi-automatic pistol that he kept under his desk. The pistol was wrapped in a white cotton cover. It had six rounds of ammunition in the magazine and one in the chamber. He knew that it was fully loaded. The safety catch was on. The offender was not licensed to possess a firearm, nor was the firearm registered. He went into the lounge room and pointed the firearm at the deceased, demanding that he leave. An argument ensued. The deceased refused to leave the unit and told the offender he was going to call the police and have him arrested. At one point the offender returned to his bedroom for a short time, but the argument continued. 4 In his interview with police, the following was said - Q97. You tell me how you felt? A. I'm telling you, mate, this is what happened. He pushed me and I lost it and I come out with a gun and I warned him to leave, and he just went crazy. I'm gonna call the police. And then he tried to, then I told him, No, get out. Get out, else I'd call the police. But that, that's it, he was gonna come for me that's why I shot him. Q98. OK. So, when did he push you? A. Well, he didn't push me. He was gonna come for me. Q99. OK. OK. So, you said, just then you said, Before you went to get the, the gun, you said, he pushed you, so do you mean, pushed, as in psychologically pushed you, or-- A. Yeah, psychologically. Q100. OK, so-- A. Man, he just kept pushing me, you know what I mean. 5 And later, this was said - Q203. Can you tell me, how, what did you do with the firearm when you walked out to the lounge room? A. I was, I was so angry and that, he got, I told him to get out, get out. He got up and he was, he was gonna hit me and I actually fell back. I was on the floor and he's, I said, Don't. I'm gonna shoot ya. And he just would not fucking go. Did not fucking leave. Q204. OK. A. We were, we were there for about, like 10 or 15 minutes. I'm telling him, Get out. I'm pointin' a gun at him. Leave me alone, go.

6 Shortly before 3pm, a passer-by heard a man's voice screaming. She also heard the sound of a distressed child's voice in a high-pitched scream. 7 The offender took off the safety catch and discharged one .22 calibre round into the left side of the deceased's chest. 8 After hearing the shot the passer by saw a little boy, who must have been SB, and heard him screaming "Daddy, daddy." 9 At about 3pm, the deceased dialled 000 on his mobile phone and collapsed on the floor in the front hallway of the unit. He passed his mobile telephone to the offender, who spoke to the operator saying "I shot my brother. Please come." The operator told the offender to put the gun down. He did so. Shortly afterwards, police arrested the offender. He admitted shooting the deceased and showed them where he had dropped the firearm. 10 Ambulance officers arrived at the scene and the deceased was conveyed to hospital but attempts to revive him were unsuccessful. A post mortem examination revealed the cause of death to be a single gunshot wound to the chest. 11 The offender is now 47 years old. He was born in Iraq and lived there with his family. He contracted polio when he was nine months old, and that affected the muscles of his legs. The family moved to Kuwait when he was 7 years old and to Australia two years later. There were eight children of the marriage. The deceased was the boy next oldest in the family to the offender. The offender is a man of below average intelligence. The effect upon him of the polio was that he found himself unable to pursue normal relationships with other boys at school. He did not do well. By the time he arrived in Australia he could not read or write but he was given remedial help and progressed normally through the school years, though it is not suggested that he did especially well at school. Throughout his developmental years his disability prevented him from taking part in the normal activities of boys and young men. One of the effects was that he was subject to bullying at school. That was another reason why he kept to himself. His brother, the deceased, seems to have dominated him and I am satisfied that throughout the years and right up to the time that he killed him, the offender feared his brother. 12 The offender has not obtained any academic or technical qualifications. He had a number of jobs earlier in his life. After becoming unemployed for a time he qualified for the receipt of a disability pension. The evidence about the offender's disability is not entirely satisfactory. Although the court adjourned the sentence hearing to enable expert evidence to be obtained about its significance, none was forthcoming. Some hearsay evidence was furnished in the report of a psychologist, Mr Borenstein, but I have been left with an incomplete understanding of the present and likely future effect of his disability upon the offender. I have been told, and accept, that he cannot run and has pain in the legs. He does not wear braces or callipers, as he did as a child. There is a suggestion that he may need to resort to such aids in the future. 13 The offender began smoking marijuana at age 18 and during the 1970s used LSD in such quantities as would, in Mr Borenstein's opinion, in all likelihood lead to permanent neurophysiological or neuropsychological changes. In recent times he has used marijuana. He did so on the day of the murder. 14 The deceased's dominance of the offender continued into adulthood. According to the account reported by Mr Borenstein, which has not been challenged, the deceased was a chronic substance abuser, particularly of crystal amphetamine (ice) and was a dealer in drugs. In 1998, when the offender was still living at his mother's house, there was a police raid, apparently brought on by the deceased's illegal activities. A few months later the offender moved to premises at Carramar in an attempt to get away from the deceased. Even so, the deceased continued to call on him, unwelcome and uninvited. Even then the offender did not confront the deceased because he was afraid of him. In 1998 or 1999 the offender purchased the pistol from the deceased because he was afraid of people in the neighbourhood, drug addicts and thieves, and wanted to protect himself. I am satisfied that he did not obtain the pistol with any particular intent towards any particular person, much less to use it as he ultimately did. At the time of the deceased's death the offender was living with his brother Reno. For the reasons I have explained, he was concerned about the deceased's visits and suspected that he might be using them to deal in drugs. He tried unsuccessfully to have the visits confined to times when Reno was present, because the deceased treated him with somewhat more respect. 15 I am satisfied that on the day of his death the deceased came again to the offender's residence uninvited and that while he was there he dealt with the offender in the manner to which he had become accustomed. I am satisfied that faced with the continuing abuse and unable otherwise to resist or control the deceased, and unable to persuade him by any reasonable means to leave his place of residence, the offender obtained the pistol. I think that he did so in the first place only to try to persuade the deceased to leave. When that did not work he became so exasperated that he deliberately fired at the deceased. However, it must also be borne in mind that, given that the offender's primary object was to obtain relief from the unwelcome attention of the deceased, he could have achieved it by leaving the premises himself until Reno should return or the deceased should leave. 16 It is possible that the offender wanted to kill the deceased, though that is not a matter about which I am satisfied beyond reasonable doubt. Counsel jointly submitted that I should not be so satisfied. I am satisfied beyond reasonable doubt that the offender intended to do the deceased grievous bodily harm. Because of the means to which he resorted to do so, firing a pistol at the torso, his offence is to be regarded as a serious one in the range of murders committed with that intent. 17 The presence at the shooting of the five year old child of the deceased and the distress obviously suffered by the child seriously aggravates the offender's criminality.

18 Other circumstances make criminality less serious. I do not think that the offence was premeditated and there was present a degree of provocation; not enough, of course, to reduce the offence to one of manslaughter, but significant. There was a rising level of anger associated with feelings of helplessness and fear. All these derived from the offender's deprived upbringing and background and his abuse at the hands of the deceased, leading to the isolation he felt. 19 The plea of guilty came very late and not before the Crown had been to the trouble and expense of twice preparing for trial and the offender had, by his own action, aborted the first trial. There was a saving of court time and expense after the entry of the plea, but its effect in mitigation of sentence is modest. I do not regard it as evidence of remorse. 20 The offender did not give evidence and I have been unable to assess him for myself, but there is some evidence of remorse. He told Mr Borenstein that he was sorry and Mr Borenstein believed it. It is difficult to test that assertion. However, the action the offender took immediately after the shooting suggests the beginnings of remorse. He continued the call to the emergency services initiated by the deceased and cooperated with the operator by dealing with the pistol as directed. When the police attended he cooperated with them and showed them where he had put the pistol. He voluntarily took part in a recorded interview with investigating police officers and gave an account of the facts now accepted to be correct. 21 The evidence shows that the offender has applied himself well during his period of remand. That supports a finding of remorse. 22 The preparedness of the offender to arm himself against whoever might threaten him is a matter of concern. It needs to be noted that he obtained and continued to maintain the murder weapon fully loaded even though he had been convicted and fined in 1998 for possessing an unauthorised firearm. He is now well settled in his ways and attitudes and his loneliness and fearful isolation seem likely to continue. There is, accordingly, a risk that he may again obtain weapons in order to protect himself. 23 I accept that the offender's disability will make it harder for him to serve his sentence because he is likely to be prevented from fully participating in the various programs likely to be offered in the corrective system. Quite what the effect on him will be I am unable to say, but I think that there will be some. I accept that it is possible that his condition may deteriorate to the point at which medical intervention is needed. 24 It was submitted that the offender's disability justified an increase in the proportion of the sentence to be allocated to eligibility for parole, with a corresponding reduction in the non-parole period. Although I shall take the disability into account in fixing the overall sentence, I do not think that it can have the effect contended for. 25 The standard non-parole period for murder is 20 years, and that is appropriate for a case falling into the middle range of seriousness. Having taken into account the aggravating and mitigating factors identified earlier in these remarks, I assess the offence as falling a little below the mid-range of seriousness. 26 There are no circumstances justifying an increase in the proportion of the sentence available for parole at the expense of the non-parole period. 27 Three of the offences the offender desires to have the Court take into account are that on the day of the murder he possessed a non-prohibited pistol, namely, a Jennings 22LR .22 calibre semi-automatic pistol, not being authorised to do so by a licence or permit; that he possessed the same firearm which was not registered; and that he did not take all reasonable precautions to ensure that the firearm was safely kept. These offences attract maximum penal sentences of 14 years, 10 years and 2 years respectively. 28 There was a fourth offence, namely that on the occasion of the shooting the offender used the pistol, but that is wholly subsumed by the elements of the offence of which he has pleaded guilty and may be left aside. 29 Because the three firearms offences are inextricably bound up with the circumstances of and motivation for the murder, I intend to impose wholly concurrent sentences. 30 The offender has been in custody since his arrest on the day of the murder, 26 September 2007, and I shall order that all his sentences commence on that day. 31 Malik Spania, for the murder of Tony Barkho I sentence you to imprisonment for a non-parole period of 18 years. The non-parole period will be taken to have commenced on 26 September 2007 and will expire on 25 September 2025. The balance of sentence, during which you will become eligible for release to parole, will be 6 years, expiring on 25 September 2031. The first day upon which you will become eligible for release to parole will be 25 September 2025. 32 For the offence of possessing a non-prohibited pistol not being authorised to do so by license or permit I sentence you to imprisonment for 6 months. That period will be taken to have commenced on 26 September 2007 and to have expired on 25 March 2008. For the offence of possessing the same firearm unregistered I sentence you to a concurrent term of 6 months' imprisonment. For the offence of failing to take all reasonable precautions to ensure that the firearm was safely kept I sentence you to a concurrent term of 3 months' imprisonment, which will be taken to have commenced on 26 September 2007 and to have expired on 25 December 2007.

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