R v Tabbah; R v Tiriaki

The issues on sentencing 6The jury did not accept the offenders' case at trial, that the Crown's circumstantial case against each of them, which rested in part on DNA evidence, was incapable of proving their guilt of any offence beyond reasonable doubt. The evidence which they then gave did not shed any light on how Mathew Hedges came to be shot. They have never given any explanation for what they did and still deny any involvement in his death. 7What was in issue in Mr Tiriaki's case on sentencing was whether the evidence established beyond reasonable doubt that he had fired the gun intending to kill Mathew Hedges, as the Crown submitted, or whether it established only that when he fired the shot, he had a hastily formed intention to inflict grievous bodily harm, having been startled by Mathew Hedges, as was submitted for Mr Tiriaki. 8The Crown's case was that given the evidence as to the circumstances in which Mathew Hedges was killed by a single gun shot to the chest fired at close range, when considered with ballistic and other evidence, he must be sentenced on the basis of an intention to kill. 9The case advanced for Mr Tiriaki was that the evidence established that there was no premeditation to shoot, let alone to kill or harm; that the use of the loaded firearm was not the subject of overt agreement or understanding; that the firing of the shot was unplanned; that it was an unexpected development outside the scope of the offenders' joint criminal enterprise; and that the shot was fired in panic, without any great thought or contemplation, or intention to kill. It was submitted that the one shot was fired in response to Mathew Hedges approaching the window while yelling, which was likely to have spooked Mr Tiriaki, with the result a stupid, reactive and senseless decision on his part. In the result it was not open to find that he had formed an intention to kill. 10It was also submitted that the aftermath of the shooting supported that conclusion, given the unprofessional and shambolic way that the things used in the offence had been disposed of at Mr Tiriaki's brother's house. Mr Tiriaki's record and background also supported this conclusion. 11In Mr Tabbah's case there is a question as to whether the evidence established beyond reasonable doubt only that he had contemplated that Mr Tiriaki intended to threaten Mathew Hedges with the gun which he knew might be loaded, or that he had contemplated the possibility that Mr Tiriaki would discharge the gun. 12There was also an issue between the parties in relation to any finding of special circumstances, to which I will return.

Findings 13There was no issue between the parties that the evidence established that the offenders went to Mathew Hedges' home, having planned to rob him, either of drugs or money or both. That was established by the evidence. The offenders had masks, gloves, a loaded gun, a knife and other materials which would all be of assistance to them in such a robbery. Those were the things found by police at Mr Tiriaki's brother's home the next day, where Mr Tiriaki had disposed of them in a bin, on his evidence during the night before. The knife was found on the ground nearby. Mr Tiriaki and Mr Tabbah's DNA was later found on various of those items and on 6 March 2012 they were both arrested and charged with Mathew Hedges' murder. 14I am satisfied that the evidence did not establish beyond reasonable doubt that Mr Tiriaki and Mr Tabbah went to Mathew Hedges' home having planned to kill him, but it does establish beyond reasonable doubt that Mr Tiriaki did not act in panic when he shot Mathew Hedges and that he intended the likely result of the shot which he fired, namely death. It also establishes beyond reasonable doubt that Mr Tabbah contemplated the possibility that Mr Tiriaki would discharge the gun. 15The factual basis upon which the offenders are to be sentenced is as follows. 16The offenders went to Mathew Hedges' home, having planned and prepared to rob him. They first removed the fly screen of one of the lounge room windows. At that time the lights in the lounge room were off, but the television was on and two young boys aged 15 and 16 years were in the room watching the TV. 17One of the boys saw a shadow at the window and the other heard the noise of the fly screen being removed. They both got up to have a look, one asking "who's that?" and the other hearing someone outside saying "let me in". The boys heard the window being smashed and both fled. Mr Tiriaki and Mr Tabbah did not. They remained outside, waiting. 18One of the boys ran to get Mathew Hedges, who was asleep in his bedroom nearby, with his girlfriend, who was still awake and the other went to check on the other two children asleep in another bedroom in the house. Mathew Hedges got up to investigate and went into the lounge room, closely followed by his girlfriend. 19Mathew Hedges went straight towards the window, asking "who the fuck is there?" His girlfriend heard glass breaking and a shot being fired. She saw Mathew Hedges drop to the ground and also felt the heat of the bullet passing her arm. The bullet struck Mathew Hedges' finger, but that did not deflect the shot, which struck him in the chest, inflicting a fatal wound. 20Mathew Hedges' mother had been woken by shouting and was getting up to investigate, when she heard the gunshot. She ran to the lounge room where she found Mathew Hedges lying on the ground with a bullet wound to the chest. 21It was only then that the two offenders fled on foot. 22This evidence establishes that Mr Tiriaki did not panic. Having gone to Mathew Hedges' home to rob him, the offenders remained standing outside the window, even after they had disturbed the two boys watching TV in the lounge room. Instead of leaving on being disturbed, they broke the window and asked to be let in. They could have left when the boys ran to get help. Instead, they remained outside, waiting at the window. They did not flee even when Mathew Hedges entered the lounge room and approached the window, asking who was there. It was then that Mr Tiriaki fired a fatal, single shot at close range, which hit Mathew Hedges in the chest. It was only then that the offenders fled. 23Why Mr Tiriaki shot Mathew Hedges has never been explained. What all of this evidence did establish beyond reasonable doubt, however, was that what the two offenders did that night was the result of planning, given what they were wearing and had taken with them; that it was contemplated that Mr Tiriaki would be armed with a loaded gun; that it might be discharged; that the shot which killed Mathew Hedges was fired deliberately; and that the shooting was not the result of any panic. 24The offenders did not themselves physically ever enter the house and so they could have left at any time. They broke into the house by removing the flyscreen and breaking the lounge room window while that room was illuminated by the television, which the boys were watching. On the evidence they were unquestionably able to see into that room better than those inside could see out. 25It is apparent from what they did that attracting the attention of those inside the house, was the offenders' purpose. They had the opportunity to leave when they were detected, but instead they waited outside. Even when Mathew Hedges entered the lounge room and approached the window, asking the offenders who was there, they could have left. Instead Mr Tiriaki fired the shot which killed Mathew Hedges. It was only then that the offenders departed. 26This evidence not only establishes beyond reasonable doubt that Mr Tabbah had contemplated that Mr Tiriaki would discharge the gun, it also proves beyond reasonable doubt that the result of the shot which Mr Tiriaki fired was likely to be more serious than merely grievous bodily harm. It was not fired as the result of any panic, but deliberately and at close range, into Mathew Hedges' chest. That establishes beyond reasonable doubt that Mr Tiriaki intended the likely result of his actions, namely Mathew Hedges' death. 27The two offenders must be sentenced in accordance with these findings.

The Court's sentencing task 28It is necessary to give some explanation of the sentencing task which the Parliament has imposed on this Court, to explain the sentences which will be imposed on the two offenders. 29The sentence imposed on each offender must reflect the gravity of the particular offence which he has committed, viewed objectively (see R v Dodd (1991) 57 A Crim R 349 at 354). 30In arriving at that sentence the Court must bear in mind the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Those purposes are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 31Each sentence must be fixed in light of the maximum penalty applicable to the crime in question. In the case of murder, that maximum is life imprisonment under s 19A of the Crimes Act 1900 (NSW). In the case of manslaughter, it is 25 years imprisonment under s 24 of the Crimes Act. 32Section 61(1) of the Act requires that a sentence of life imprisonment be imposed on an offender, if the Court is satisfied that the offender's level of culpability in the commission of the offence is so extreme, that the community's interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence. It is a matter for the Crown to establish that an offence falls within s 61(1) (see R v Merritt [2004] NSWCCA 19; 59 NSWLR 557). 33In this case the Crown did not seek the imposition of such a sentence on Mr Tiriaki, submitting that his offence fell at, or above, the mid-range of seriousness of such offences. Mr Tiriaki's case was that it fell below the mid-range of such offences. 34In Mr Tiriaki's case it must also be borne in mind that by s 54A of the Crimes (Sentencing Procedure) Act, the Parliament has imposed a standard non-parole period of 20 years imprisonment for an offence of murder falling in the middle of the range of objective seriousness of such offences. A non-parole period is the minimum period that an offender will serve in prison, before being eligible to be released on parole for the balance of the sentence imposed for the offence. There is no standard non-parole period imposed for the offence of manslaughter. 35Both the maximum penalty and the standard non-parole period, in the case of Mr Tiriaki, are factors which must be taken into account on sentencing, as the High Court explained in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 36Under s 21A of the Act on sentencing the Court is also required to consider identified aggravating and mitigating factors revealed by the evidence in each case, as well as any other objective or subjective factors that affect the relative seriousness of the offender's offence. Consideration must also be given to questions of general and specific deterrence in each case, as well as the principles of parity and totality, if relevant. 37The sentence imposed on each offender must finally ensure that there is a reasonable proportionality between the sentence imposed and the circumstances of the particular crime committed (see R v Scott [2005] NSWCCA 152 at [15]). 38Attention must also be paid to s 44(2) of the Crimes (Sentencing Procedure) Act, which requires that the balance of the term of the sentence imposed on an offender must not exceed one-third of the non-parole period imposed, unless the Court decides that there are special circumstances which warrant a departure from that ratio. 39If there is to be any such adjustment, it must not be such as to reduce the non-parole period below the minimum term which justice requires the offender to serve for the offence he has committed (see Power v The Queen [1974] HCA 26; 131 CLR 623 at 628).

Crimes (High Risk Offenders) Act 2006 40It is finally also necessary to mention the effect of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious violence offences", which include the offence of murder (see s 5A). The effect of this Act is that the State can apply to the Supreme Court for an order that the offender continue to receive supervision or remain in detention (see s 5E). If the Court is then satisfied, to a high degree of probability, that the offender would be a "high risk offender", that is an offender who poses an unacceptable risk of committing a serious violence offence if not kept under supervision, it may make an order for extended supervision (see s 5F). An order for continuing detention may be made if the Court is then satisfied that adequate supervision will not be provided by an extended supervision order (see s 5G).

Victim Impact Statements 41Victim impact statements were received from Mathew Hedges' parents, which were both read in Court. Mrs Hedges read her own statement. 42Both statements were moving. Every person who heard them will have understood the sorrow, grief and anger which those who loved Mathew Hedges felt over his awful death and in Mrs Hedges' case, will have appreciated the very difficult task which she undertook in reading her statement out in open Court, in front of the offenders and members of the public present. 43How these statements may be taken into account in this sentencing exercise will, I am sure, have been explained to Mathew Hedges' family, by reference to the case law which the parties are agreed must be applied to them and which I have followed (see R v Previtera (1997) 94 A Crim R 76; MAH v R [2006] NSWCCA 226 at [60]-[62]; SBF v R [2009] NSWCCA 231; 198 A Crim R 219 at [89]-[90] and Josefski v R [2010] NSWCCA 41; 217 A Crim R 183 at [37]). 44It is to be hoped, however, that through these proceedings they will all gain some peace of mind not only by an understanding of what the evidence has revealed about how Mathew Hedges came to be murdered, but also by their experience of how our society and its criminal justice system, has dealt with that terrible crime. 45For my own part, I extend to all of Mathew Hedges' family and friends, my deepest sympathy for his death, the loss which they have suffered and the very understandable grief and anguish it continues to cause them.

Mr Tabbah's case 46Mr Tabbah's case was that there was a complete dearth of evidence as to what had occurred before the two offenders arrived at Mathew Hedges' home and little explanation for his offence. That was why, it was argued, his manslaughter would be found to have been committed on an aid and abet basis. 47Reliance was placed on the report provided by the forensic psychologist Mr Bradley Jones as to Mr Tabbah's background and history of offending, which had resulted in his institutionalisation and which would provide a basis for a finding of special circumstances in his case, as would his evidence of the conditions of custody in which he was held, which it was submitted were particularly punitive, and which would not promote his rehabilitation in the way that conditions of custody were ordinarily designed to promote. 48It was, however, accepted that Mr Tabbah's criminal history posed a difficulty on sentencing, showing as it did that on earlier occasions when released on parole, he had committed other offences shortly after release. This, it was submitted, would be accepted as leading to the conclusion that there was a need for his eventual gradual release into the community during a period of extended parole, during which treatment for his conditions could be sought. In the result protection of the community would not be considered paramount in his case.

The seriousness of Mr Tabbah's offence 49Sentencing Mr Tabbah raises questions of some complexity. The sentencing task must begin by an assessment of the nature and seriousness of his offence. 50Mr Tiriaki and Mr Tabbah went to Mathew Hedges' home intending to rob him. Drugs were found at Mathew Hedges' home and evidence was led which suggested that he was not only a drug user, but a drug supplier, who had been supplying drugs from his home. That does not lessen the seriousness of Mr Tabbah's offence. As Howie J discussed in R v Frazer [2007] NSWSC 1449 at [25]: "The criminal law does not discriminate between unlawful homicides on the basis of the effect upon the community of the death of the victim. It acts on the understanding that all life is precious and the taking of human life is of the greatest seriousness regardless of the identity of the victim or the impact of the death on others." 51While Mr Tabbah's offence was less serious than the murder of which Mr Tiriaki was convicted, the evidence establishes that his was a very serious offence of manslaughter, resulting as it did in Mathew Hedges' death during the robbery which the two offenders had planned to commit together, by breaking in, late at night at Mathew Hedges' home, when he would be most vulnerable, while armed with a loaded gun. 52Instead of fleeing, as he could have, when they were detected by the two boys awake inside the lounge room, Mr Tabbah remained to assist Mr Tiriaki, knowing that he had a loaded gun and contemplating that the gun would be discharged, as I have explained. That must all be taken into account when sentencing Mr Tabbah. 53In Mr Tabbah's case the jury's verdict reflects that it was not established beyond reasonable doubt that he intended Mathew Hedges to suffer death or serious injury as a result of his own actions. That may not be overlooked when sentencing Mr Tabbah for his offence. Nevertheless, as I have explained, the evidence establishes that Mr Tabbah's moral culpability for his serious offending was also unquestionably high and must be reflected in the sentence imposed upon him. 54Like murder, manslaughter also involves the unlawful killing of another person. The maximum penalty imposed by the Parliament for that offence is, as I have said, 25 years imprisonment. That is a statutory guidepost which must be considered as one of the many factors which must be taken into account in arriving at a proper sentence in Mr Tabbah's case. There is, however, no standard non-parole period for this offence. Nor is it possible to identify a range of sentences for manslaughter offences of which account should be taken, given the nature of such offences.

Aggravating factors 55There are however, various aggravating factors specified in s 21A(2) of the Crimes (Sentencing Procedure) Act which must be taken into account when sentencing Mr Tabbah. They include that: (d) the offender has a record of previous convictions; (e) the offence was committed in company; (ea) the offence was committed in the presence of a child under 18 years of age; (eb) the offence was committed in the victim's home; (g) the injury, emotional harm, loss or damage caused by the offence was substantial; (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence; (n) the offence was part of a planned or organised criminal activity. 56The evidence of what the offenders had with them when they went to Mathew Hedges' home established that the offence was the result of prior planning, as I have already said. Mr Tabbah was in company with Mr Tiriaki when they broke into Mathew Hedges' home, where he was with his children, nephews, girlfriend and mother. Mr Tabbah's offence unquestionably resulted in substantial harm to them all. That the offence was committed even though the presence of children became apparent to the offenders when they were breaking into the lounge room, must also be taken into account. 57Also to be taken into account is that Mr Tabbah has a long and serious criminal record, commencing in 2004. His offences include serious driving offences, assault, destroying or damaging property, robbery in company, assault occasioning actual bodily harm, robbery while armed with an offensive weapon, and assaulting law enforcement officers. 58Since 2005 he has been released on parole three times. On two prior occasions he has committed further offences while on parole and had his parole thereupon revoked. On this occasion he had been released on parole in November 2011 and was still on parole when he committed this offence in December 2011. 59Mr Tabbah has also repeatedly been dealt with for offences committed while in custody, including fighting, assaults and damage to property. His offending includes an offence under s 60A of the Crimes Act of assaulting an officer, whilst in custody on remand for this matter. He has entered a plea for that offence, for which he is yet to be sentenced. 60This serious record certainly permits no leniency in Mr Tabbah's sentencing exercise.

Mitigating factors 61No mitigating matters specified in s 21A(3) of the Crimes (Sentencing Procedure) Act were identified to be relevant on Mr Tabbah's sentencing, but it was submitted that it was proper to take account of the efficiency of the conduct of his trial, given that the only cross-examination which was pursued related principally to DNA evidence. While that did not evidence remorse, it evidenced a willingness to facilitate the course of justice, which it was proper to take into account in his favour. 62In R v Doff [2005] NSWCCA 119 at [58] the view was taken that the making of extensive admissions and refraining from resort to technical objections of no merit did show a willingness to facilitate the course of justice. In other cases it has been recognised that where trials have been shortened by the reduction in the number of witnesses required, or the way in which technical evidence was adduced "in short hand fashion", that, too, is appropriate to take into account as facilitating the course of justice. 63In Mr Tabbah's case, I accept that some account should be taken of the efficient way in which this trial was conducted on his part. The approach adopted was, it must be accepted, in contrast to that adopted in Mr Tiriaki's case.

Mr Tabbah's personal circumstances 64Mr Tabbah's personal circumstances must also be taken into account on sentencing. He is still a young man, aged only 22 at the time of this offence. 65Unchallenged affidavit evidence was given on sentencing by Mr Tabbah as to his onerous conditions in custody. Mr Bradley Jones' report was also tendered. 66The history which Mr Tabbah gave Mr Jones was not given by way of sworn evidence. Ordinarily such accounts must be approached with some caution, given that it has not been tested. In this case, however, Mr Tabbah gave affidavit evidence on sentencing and was not required for cross-examination and so the history he gave Mr Jones must be accepted as unchallenged. 67Mr Tabbah's evidence established that he first went into juvenile detention in February 2005. He was released in April 2006 and returned to custody in August 2006. He was again released in November 2006. He went into adult custody in February 2008. He then spent a year in segregation and received a maximum security classification. In September 2009 he received an extremely high security designation. He was released in November 2011. 68While in adult custody Mr Tabbah was placed in the Individual Violent Offender Intervention Program and was held in the Security Threat Group Intervention Program. Since returning to custody in March 2012 he has again been given a High Risk Management Unit designation and was placed in the High Risk Management Unit. Since then he has been out of segregation for only about three months. He has also been placed on Behaviour Level Management Programs. 69Mr Tabbah's evidence was that his custody in the High Risk Management Unit is more onerous than when he had an extremely high security designation. This affects the number and basis upon which he can receive non-legal visits. He is not permitted to have food or drinks brought to him during such visits. Those to whom he makes telephone calls must be approved. He does not have access to the gym or oval and he is held in custody in small spaces, as the result of which, he says, he has developed short sightedness. He has limited opportunity to associate with other inmates and then for a maximum of two hours per day. As a result he feels depressed and lonely. He has more limited opportunity to spend money on buy ups and is barred from having all of his personal property and electrical items. 70Mr Tabbah also described his conditions of escort, which involve him being strip searched, handcuffed and shackled at the ankles, while guarded in a modified vehicle. Those conditions have not altered from those which applied when he had an extremely high security designation. Nor has his access to other activities. He is still not able to participate in religious activities in the way that those who do not have such restrictions are permitted to do. He also has no access to education and training courses, apart from English language studies and has no opportunity to work. 71Mr Jones' report outlined a history given by Mr Tabbah, of being one of two children, raised in a strict environment, where corporal punishment was regularly used by his father. He has never met his sister and has had no contact with his mother since he was aged four years, when his parents separated. He was largely raised by his grandmother and described having a violent and abusive relationship with his father. He reported having had a restrictive upbringing and that when he engaged in delinquent behaviour, he was beaten with fists, sticks and other implements. 72Mr Tabbah developed antisocial behaviours as an adolescent, to gain peer acceptance. His increasing anger and aggression resulted in early cessation of schooling and the development of an "us against them" view, which unfortunately, has carried into adulthood. 73Mr Tabbah denies any drug or alcohol abuse. He reported experiencing significant inexplicable anger from approximately 12 years of age, which has continued. He reports that he then began associating with older peers and began engaging in fighting, to appear cool and be liked. He was academically average at school, but was often disciplined for disruptive behaviour. He was expelled from school in year eight for fighting and soon afterwards went into juvenile detention, when aged 15. He has never pursued other education or employment, as the result of his frequent incarceration. 74Mr Tabbah has engaged in many fights while in custody and says that he has experienced racial vilification and abuse from other inmates, which was not sanctioned by staff, but resulted in him not being able to control or manage his intense anger. The result was that extreme force has had to be used on occasion to subdue him. On one occasion he was seriously assaulted. He also quickly developed strong anger towards prison officers and an "us and them" approach. 75Mr Tabbah acknowledged being easily angered by trivial events and almost immediately responding with violence, as the result of which he would escalate the violence and sustain serious injuries. He has had many periods of incarceration for violent offences as a result, as well as negative interaction with prison officers while in custody. 76Mr Tabbah also said that he had suffered significant head and facial injuries in prison; that he had been beaten unconscious; and that he twice believed he would be killed. He reported experiencing agitation day and night without triggers, nightmares, flashback memories of previous assaults and panic responses when approached by prison officers. 77Mr Jones' opinion was that Mr Tabbah was likely to have become institutionalised, having spent approximately six and a half years in custody since aged 15 years. He explained that this is a process where an inmate is shaped and transformed by the institutional environment in which they live in custody, with the result that the norms of prison life are incorporated into habits of thinking, feeling and acting. To survive the prison experience, the inmate culture, patterns of behaviour and interacting with others are internalised, in ways which may be counterproductive outside prison. 78Mr Jones explained that this process may have more effects on those who enter institutions early in life, with significant psychological costs the result. Release can then be traumatic, with disorientation resulting, as well as behaviours counterproductive to re-entry into the community, whose effects impede successful reintegration. Mr Jones considered that: "Regrettably, further incarceration of Mr Tabbah is likely to solidifying (sic) a personal identity that runs counter to the prosocial identity he will need to successfully navigate his re-entry into society." 79In the result Mr Jones assessed Mr Tabbah as posing a high risk of committing further violent offences. He diagnosed him to be suffering intermittent explosive disorder, antisocial personality disorder and posttraumatic stress disorder 80Mr Jones also considered that treatment in custody to manage and decrease his risk of recidivism would be in Mr Tabbah's interest, but that treatment of his symptoms could only occur to a limited capacity, given the nature of correctional facilities and the difficulty of providing him the necessary treatment there. In Mr Jones' view such treatment could only be appropriately provided in the community, with strict compliance with a treatment plan.

Deterrence 81The circumstances of Mr Tabbah's offence and his personal circumstances are such that ordinarily there could be no question that both general and specific deterrence must feature in the sentence which is imposed upon him. 82Given the evidence of Mr Tabbah's mental disorders there must, however, in my view be some lesser weight given to the role which general deterrence plays in his sentence (see Muldrock at [53] - [54]). Nevertheless, I take the view that some account must be taken of such deterrence, because on the accounts which Mr Tabbah gave Mr Jones, it is apparent that he does have insight into his behaviour and understands the gravity of his actions, when he acts violently towards others (see R v Wright (1997) 93 A Crim R 48 at 51 - 52). 83Also to be considered is that Mr Tabbah unquestionably poses a very serious risk of committing further, serious offences of violence, both while in custody and on release. Mr Tabbah, on his own account, has not only a continuing attitude of disobedience to the law which binds us all, but also appears to have uncontrollable rage, the response to which is repeated, serious violence. 84I am satisfied that in his sentence it follows that considerable weight must accordingly be given to personal deterrence and the protection of the community (see: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 and R v Rice [2004] NSWCCA 384; 150 A Crim R 37 at [26]; R v Abboud [2005] NSWCCA 251 at [33]; R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [54]).

Totality and parity 85It was submitted for Mr Tabbah that he had spent a considerable period in custody before committing this offence; that the Court must be mindful of not imposing a crushing sentence upon him; and that while a significant custodial sentence must be imposed upon him, the principle of totality applied. Accordingly, he should be sentenced so as not to put at risk any incentive that he might have to rehabilitate himself; not to induce a feeling of hopelessness; and not to destroy any expectation that he may have a useful life after release. 86Despite these submissions, I am satisfied that the principle of totality does not arise for consideration in Mr Tabbah's case. Totality is a principle of sentencing concerned with multiple offending, but it does not arise to be considered simply because an offender has a long, serious criminal record of repeated offending in the past. 87In Mr Tabbah's case, the position is that he was sentenced in 2008 to a four year term, which expired on 17 February 2012. He was not released on parole until 14 November 2011, because of sentences imposed on him in September 2009 for other offences, the first of which expired on 17 February 2012 and the second on 14 November 2011, when he was released on parole. 88This offence was committed in December 2011, after Mr Tabbah's release on parole for his 2008 offence. That parole was never revoked and may not be considered as having been notionally revoked (see Skondin v R [2006] NSWCCA 59 at [16] - [17]). 89Mr Tabbah's sentence for his 2008 offence expired on 17 February 2012. He was arrested on 6 March 2012 and charged with Mr Hedges' murder. He has been held in custody solely referable to the offence for which he is now being sentenced, until he committed another offence in custody, to which he has now pleaded guilty and for which he will be sentenced in the District Court, after this sentence has been imposed. 90It follows that while the principle of totality will arise to be considered in that further sentencing exercise in the District Court, the principle does not apply in this sentencing exercise, given that Mr Tabbah's last sentence expired on 17 February 2012; that his parole for his 2008 offence was never revoked; and that on 6 March 2012 he was arrested and held in custody referable to this offence. 91Accordingly, I have not taken the principle of totality into account in this exercise. 92That Mr Tabbah and Mr Tiriaki were co-offenders engaged in the same criminal enterprise when Mathew Hedges was shot, means that the parity principle requires consideration. 93Applying the parity principle when co-offenders are convicted of different offences raises particular difficulties (see Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 and Jimmy v R (2010) 77 NSWLR 540 at [230]). The principle seeks to ensure that even though different sentences must be imposed upon the offenders, given the different offences for which they are being sentenced and the differences in their particular circumstances, which must be taken into account in their respective cases, that the sentences imposed also endeavour to ensure that justice is done between them. I have accordingly taken account of the principle of parity in sentencing Mr Tabbah.

Special circumstances 94Mr Tabbah submitted that special circumstances would be found in his case, notwithstanding his entrenched recidivism, given the harsh and onerous nature of his custody, the evidence of his institutionalisation and the evidence that his rehabilitation would be furthered by an extended period of supervision, where he would benefit from treatment not likely to be available to him in custody. 95I accept that the evidence does establish that Mr Tabbah's custody will be harsh. This evidence and the opinions expressed by Mr Jones as to Mr Tabbah's institutionalisation and his need for considerable treatment, if his repeated resort to serious violence is to have any prospect of being brought under control, must be properly to be taken into account, in deciding whether special circumstances should be found in his case. I also accept that the evidence establishes that Mr Tabbah has suffered social, educational, psychological and occupational disadvantages in his relatively young life and that he is at considerable risk of further institutionalisation, entrenched recidivism and serious reoffending, given his uncontrollable anger and resort to violence. 96I have given these matters careful consideration and have concluded that while a relatively lengthy sentence must be imposed upon him for his serious offence, he will need a long period of careful supervision in order to re-adjust back into the community, to ensure that he receives necessary treatment and does not re-offend. There is, however, a minimum period which he must spend in custody to reflect the seriousness of his crime. Accordingly, there can only be a small reduction to the non-parole period to which he will be sentenced, that being the minimum period which Mr Tabbah must spend in custody for his serious offence. 97Accordingly, I do find special circumstances. The resulting adjustment to the non-parole period is intended to result in Mr Tabbah receiving a sufficient period of conditional and supervised liberty, to assist in the protection of the community on his release and to maximise the prospect that he will not reoffend, by pursuing treatment not readily available to him in custody. 98Whether Mr Tabbah becomes eligible for such parole at the end of his non-parole period will, of course, depend on his ongoing conduct in custody. That lies entirely in his own hands.

Mr Tiriaki's case 99Mr Tiriaki's case was that it would be concluded that he had not fired the shot which killed Mathew Hedges without premeditation or planning; that Mr Tabbah's manslaughter conviction compels the conclusion that the robbery did not involve, to Mr Tabbah's knowledge, the use of a firearm, or at least a loaded firearm; that firing of the shot was unexpected, unplanned and outside the scope of their joint criminal enterprise; that it was probably fired in panic and without substantial thought or contemplation; and that there was no intention to kill, but only a hastily formed intention to cause grievous bodily harm. It was submitted that the objective seriousness of his offence would be assessed to have been below the mid-range. 100The presence of Mathew Hedges' family when he was killed in his home was accepted to be an aggravating factor, which had to be taken into account, but that the fact that Mathew Hedges had brought illegal substances into his home, from where he sold them while his family lived there, was submitted to render this aggravating factor less serious than it would otherwise have been. 101Given Mr Tiriaki's relevant subjective factors, including his age, lack of serious prior criminal record, medical conditions and mental state, it was submitted that it would be concluded that there was considerable room still for leniency in sentencing him; that rehabilitation was possible; and that on release Mr Tiriaki would not pose a danger to society. In the result, special circumstances would be found, so that Mr Tiriaki would receive close, extended supervision upon release from custody to parole.

The seriousness of Mr Tiriaki's offence 102As I have explained, the maximum sentence of life imprisonment is reserved for extreme offences of murder. This was explained in R v Lewis [2001] NSWCCA 448, where it was observed at [60]: "Because the life sentence provided by s.61 of that Act does not contemplate any prospect of relief in the future, no matter how distant, it should be reserved for crimes of the utmost heinousness: Chung [1999] NSWCCA 330, Ibbs v. R. (1987) 163 CLR 447 at 451-2, Twala NSWCCA 4/11/94, Fernando (1997) 95 A Crim R 553 at pars.344-4 Harris at 423." 103In Mr Tiriaki's case, I am satisfied that the Crown's submissions as to the objective seriousness of his offence must be accepted. This was a very serious offence, involving as I have explained the murder of a young man, shot late at night at close range in the chest, after being woken by intruders there to rob him, when he was at his most vulnerable, asleep with his family in his own home. Nevertheless, while I am satisfied that this was clearly a very serious example of murder, the parties' common ground that the evidence established that this is not a case of the most extreme kind, for which a life sentence must be imposed, must be accepted. 104The 20 years standard non-parole period and the maximum sentence of life imprisonment for the offence of murder are statutory guideposts which must be taken into account, as I have explained in sentencing Mr Tiriaki. The evidence unquestionably reveals that objectively, this was a very serious offence, in my assessment falling somewhat above the mid-range of such offences. 105As I explained earlier, that the offenders went to Mathew Hedges' home intending to rob him of drugs or money, does not ameliorate the seriousness of this cold blooded killing of a defenseless man, woken late at night by his nephews, who had disturbed the offenders, while he was asleep at his home, where he ought to have been safe. 106On the evidence this was an offence quite out of character for Mr Tiriaki, given his background and prior record, to which I will return. Whatever be the explanation for the decisions which led him to commit this awful offence in December 2011, Mr Tiriaki's moral culpability for this serious offending was unquestionably high. 107While the evidence did not establish that the offenders went to Mathew Hedges' home having planned to kill him, as I have explained the robbery that they went there to commit was planned and the shot which Mr Tiriaki fired was not fired in panic, but deliberately. Mr Tiriaki waited outside with Mr Tabbah, instead of fleeing as he could have when they were detected by the two boys, remaining even when they ran to get help and when Mathew Hedges entered the lounge room to investigate. Mr Tiriaki then deliberately shot Mathew Hedges to the chest at close range, intending the likely result of the shot which he fired, namely the death which followed. Mr Tiriaki's moral culpability for that awful offending was unarguably significant, which must be reflected in the sentence imposed upon him.

Aggravating factors 108The various aggravating factors specified in s 21A(2) of the Crimes (Sentencing Procedure) Act which must be considered in Mr Tiriaki's sentencing exercise are that: (d) the offender has a record of previous convictions; (e) the offence was committed in company; (ea) the offence was committed in the presence of a child under 18 years of age; (eb) that it was committed in the victim's home; (g) the injury, emotional harm, loss or damage caused by the offence was substantial; (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence; (n) the offence was part of a planned or organised criminal activity. 109That Mathew Hedges' two nephews and two of his young children were at his home with his mother and girlfriend, when he was killed must be taken into account. As I have explained that children were present became apparent when the offenders were disturbed. That they were all substantially harmed by this awful experience must also properly be taken into account in this sentencing exercise. 110Mr Tiriaki does not have a serious record like that of his co-offender, but he has not led a blameless life. On the evidence of his sister and brother, this offence was, however, out of character, committed at a time when his brother had warned Mr Tiriaki against pursuing his association with certain persons. That was certainly good advice, which Mr Tiriaki regrettably did not heed. 111Mr Tiriaki has a limited record of convictions, including driving offences, an aggravated break and enter in company offence in 2007 and an assault in 2008. He was also on a bond at the time he committed this offence. This will be his first custodial sentence. This record must be taken into account, but I accept, as was submitted for Mr Tiriaki, it is a record which still permits some leniency in this sentencing exercise.

Mitigating factors 112Mitigating matters which may be taken into account on sentencing Mr Tiriaki specified in s 21A(3) of the Crimes (Sentencing Procedure) Act include that: (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise. 113Given the evidence of Mr Tiriaki's past, including his past work background, pursued despite the serious injury he suffered to his back as a child, the absence of alcohol or serious drug abuse, his family background, their continuing support, and that in custody Mr Tiriaki has pursued education opportunities available to him and has not committed further offences, I am of the view that there is room for hope that Mr Tiriaki has prospects of rehabilitation and that he will not reoffend in future. 114That will, of course, finally depend on him and the choices which he makes in the future, including whether he chooses to pursue his use of illicit drugs and association with other offenders. With the ongoing support of his family, I consider that there are prospects that he will take a different path in the future. 115Given the serious nature and circumstances of this offence, however, a murder committed in pursuit of drugs for financial gain through robbery, for which Mr Tiriaki has never accepted any responsibility, there is no basis in the evidence on which a positive conclusion can presently be formed that he is unlikely to reoffend. His prospects of rehabilitation have to be assessed in the light of that conclusion, but still I consider that rehabilitation is possible, particularly given Dr Neilssen's opinion, to which I will return, but it is not certain.

Mr Tiriaki's personal circumstances 116Mr Tiriaki's personal circumstances must also be considered. Evidence was led from his brother. Medical reports relating to the back injury which he suffered in a car accident while aged 12 years were tendered, as well as a report from the psychiatrist, Dr Nielssen, who had examined Mr Tiriaki. A letter from Chaplain Farhan Khalil was also tendered. 117Mr Tiriaki is a young man who was aged only 21 at the time of this offence. The medical reports of Dr Gerard Glancey and Dr Peter Conrad from 2005 - 2007, confirm the serious injury which Mr Tiriaki suffered as a child and its ongoing physical consequences for him over time, about which his brother also gave evidence. Dr Glancey's opinion was that Mr Tiriaki's decline in behaviour at school and the anti-authoritarian attitudes he developed were attributable to the consequences of his back injury, as was his drug use and lack of social skills. 118His brother said that this injury and the ongoing pain it caused had adversely affected Mr Tiriaki's performance at school, which had also been adversely affected by his intellectual difficulties. To his brother's knowledge, Mr Tiriaki self medicated that pain through the use of cannabis. This injury had stopped Mr Tiriaki pursuing ten pin bowling, at which he had excelled, placing third in Australia, as well as other sports. The result was that he left school to pursue an apprenticeship at TAFE, which he could not complete because of ongoing back pain, which had been exacerbated when Mr Tiriaki was injured in another car accident not long before this offence. Despite this Mr Tiriaki had a great interest in cars, which he pursued successfully and which ensured that he always had gainful work, either for others, or on his own account. This evidence corroborated evidence which Mr Tiriaki had himself given at trial. 119These circumstances help explain how Mr Tiriaki came to be associated with persons involved in drug supply and, ultimately, his involvement in the robbery during which he committed the murder for which he is now being sentenced. Mr Tiriaki had been counselled against pursuing those associations, to no avail. He comes from a stable and supportive family background and continues to have that support, even while he is in custody. 120Chaplain Khalil wrote that he had come to know Mr Tiriaki while he was in custody; that he had regularly attended chapel and that they had spoken together in the yard. The Chaplain said that he found Mr Tiriaki to be eager to learn about faith and to live his life according to such teachings. 121Dr Nielssen examined Mr Tiriaki in September 2014. Mr Tiriaki did not give evidence and so his account to Dr Nielssen must be approached with some caution. 122Mr Tiriaki did not admit to Dr Nielssen of having had any responsibility for Mathew Hedges' murder. He gave Dr Nielssen a history of marijuana use from age 18, his intake increasing to three joints a day after suffering the further injury to his back in a car accident. He reported a stable and supportive family background and employment as a repairer of non-insured cars. He reported a criminal record for an assault when aged 18 and drive while disqualified offences. He also reported a psychiatric history of depression after his back injury, but no history of mental illness. There had been a diagnosis of adjustment disorder with mixed anxiety and depression after the back injury. 123Dr Nielssen diagnosed substance use disorder, a depressive illness and a possible learning disorder. His opinion was that Mr Tiriaki suffers a substance use disorder, having a history of daily use of cannabis; of complications of substance use, which brought him into contact with other drug users, including a former girlfriend who had a drug problem and possibly with Mr Tabbah, who it was clear had a severe conduct disorder and a pattern of antisocial conduct as an adult. 124Dr Nielssen also found a history of a depressive illness after Mr Tiriaki's back injury in adolescence. He had been diagnosed with depression by a doctor he saw soon after reception into custody. There was also a diagnosis of a possible learning disorder and attention deficit hyperactivity disorder, but Dr Nielssen noted that he had been able to become a capable mechanic, with good concentration on tasks that interested him. 125Dr Nielssen concluded that: "Mr Tiriaki was thought to have good prospects of rehabilitation on the basis of the absence of a pattern of antisocial conduct from adolescence, or a severe form of substance use disorder associated with past offending, which are the main predictors of recidivism, and his account of continuous employment from the time he left school."

Deterrence 126Mr Tiriaki's mental health issues and the evidence as to the adverse consequences which they will have for him in custody, particularly given his ongoing back pain, must be taken into account in approaching the role that deterrence must play in his sentence. 127I have concluded that given the gravity of Mr Tiriaki's offence and the circumstances in which it occurred, there can be no question that both general and specific deterrence must feature in the sentence which is imposed on him, notwithstanding Dr Nielssen's opinions. 128I have concluded that the role which general deterrence must play in Mr Tiriaki's sentence must be somewhat ameliorated, but that it cannot be overlooked entirely. Specific deterrence and protection of the community are, however, important in Mr Tiriaki's case, given the nature and seriousness of his offence.

Totality and parity 129The principle of totality arises to be considered in Mr Tiriaki's case. He was arrested on 6 March 2012, but was later sentenced in the Local Court to 3 months' imprisonment from that date, for driving offences, in circumstances where other sentences were not practically available to impose upon him. 130I can, however, see no reason why the sentence imposed for this offence should be made concurrent with the sentence imposed for the driving offences. Those offences were committed after Mathew Hedges' murder at a time when he was on a bond for driving offences and are entirely unrelated to that offence. 131Accordingly, I have concluded that the sentence for this offence will commence on 5 June 2012. 132The principal of parity also arises to be considered in Mr Tiriaki's case. Mr Tiriaki has been convicted of an offence of murder, an offence considered by the Parliament to be much more serious than that of manslaughter, as the respective maximum sentences imposed for the two offences and the standard non-parole period which applies to the offence of murder, reveals. That must be reflected in the sentences respectively imposed. 133I have however taken the parity principle into account in arriving at Mr Tiriaki's sentence, as one of the matters to which regard must be paid in his sentencing exercise, given the need to endeavour to ensure that justice is done between the two offenders, notwithstanding the different offences of which they have been convicted and their very different personal circumstances, which must be reflected in the sentences imposed on each of them.

Special circumstances 134Mr Tiriaki's case was that special circumstances would be found in his case, given the lengthy sentence which he faces, this being his first time in custody; his diagnosis of depression; the deterioration in his physical health, including his significant weight loss since going into custody, despite increased appetite being a side effect of the antidepressant medication he has been prescribed; the worsening of his back condition and lack of access to physiotherapy treatment. 135I accept that given the serious offence which Mr Tiriaki has committed, his first time in custody will be lengthy and his sentence will be served in difficult circumstances, while suffering chronic, ongoing back pain, for which he will not have ready access to the treatment which he usually received. 136I have concluded that given his age and health, what I have said about re-offending and rehabilitation, and the obvious need for him to have an extended period of supervision on release from custody, there should be a finding of special circumstances and a short departure from what the usual ratio would result in, by way of a non-parole period, which is the minimum period that Mr Tiriaki must serve in custody for his serious offence.

Mr Tabbah's sentence 137In Mr Tabbah's case, having considered all of the matters I have mentioned, I have concluded that the sentence for his offence must commence on 6 March 2012. 138The total term of his imprisonment will be 14 years, with a non-parole period of 10 years. The result is that the earliest date that Mr Tabbah will be eligible for release for his offence is 25 March 2022. His release will depend firstly on the sentence to be imposed on him for the s 60A offence, for which he is yet to be sentenced and secondly when eligible for release, on him convincing the Parole Authority that he should be then released on parole. His sentence will expire on 5 March 2026.

Mr Tiriaki's sentence 139In Mr Tiriaki's case, having considered all of the matters I have mentioned, I have concluded that the sentence for his offence must commence on 5 June 2012. 140The total term of his imprisonment will be 28 years, with a non-parole period of 20 years. The result is that the earliest date that Mr Tiriaki will be eligible for release for his offence is 4 June 2032. His release will depend on him convincing the Parole Authority that he should be then released on parole. His sentence will expire on 4 June 2040.

Orders 141Salim Tabbah you are convicted of the manslaughter of Mathew Hedges. 142You are sentenced to a term of imprisonment with a non-parole period of 10 years, commencing on 6 March 2012 and expiring on 5 March 2022, with a balance of term of 4 years, which is to commence on 6 March 2022 and to expire on 5 March 2026. The earliest date that you will be eligible for release on parole is 5 March 2022. Your sentence will expire on 5 March 2026. 143Wassim Tiriaki you are convicted of the murder of Mathew Hedges. 144You are sentenced to a term of imprisonment with a non-parole period of 20 years, commencing on 5 June 2012 and expiring on 4 June 2032, with a balance of term of 8 years, which is to commence on 5 June 2032 and to expire on 4 June 2040. The earliest date that you will be eligible for release on parole is 4 June 2032. Your sentence will expire on 4 June 2040.

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: 10 December 2014