R v Tuki

History of Proceedings Against Offender 7It is appropriate to refer to the history of proceedings against the Offender. This is relevant to a number of issues, including the discount to be afforded to him for his pleas of guilty. 8In circumstances to be described shortly, the Offender was arrested on 4 July 2010. He was charged with a number of serious offences. 9At the time of the commission of the present offences, the Offender was on bail for other matters which, in due course, came before the Parramatta District Court. An issue as to fitness to be tried was raised concerning the Offender with respect to the District Court matters. On 21 November 2011, he was found unfit to be tried upon those matters and his case was referred to the Mental Health Review Tribunal ("the Tribunal"). On 14 March 2012, the Tribunal determined that the Offender remained unfit for trial upon the District Court matters and that it was unlikely that he would become fit within the next 12 months. In due course, a special hearing was listed in the District Court for 4 March 2013. 10On 18 June 2012, the Offender was committed for trial on the Supreme Court matters. He appeared in the Arraignments List on 3 August 2012, but was not arraigned, as a question as to his fitness to be tried had arisen. 11On 23 November 2012, a fitness hearing proceeded before me, at which I found that the Offender was not fit to be tried on the Supreme Court matters: R v Tuki [2012] NSWSC 1436. 12As a result of my finding, the Offender was referred to the Tribunal in accordance with the provisions of the Mental Health (Forensic Provisions) Act 1990. 13On 28 February 2013, the Tribunal determined that the Offender had become fit to be tried for both the District Court and the Supreme Court matters. The District Court special hearing did not proceed on 4 March 2013, with the matters being adjourned until April 2013 for that Court to undertake a further fitness hearing. 14On 15 March 2013, I conducted a further fitness hearing, after which the Offender was found fit to be tried for the Supreme Court matters: R v Tuki (No. 3) [2013] NSWSC 203. At that time, it was not possible to join the Offender to the trial of other persons (John Khoury, Mohammad Jawad Karimi and Mahdi Mir) which commenced before a jury on 18 March 2013. 15The Offender's matters were placed in the Arraignments List for 5 April 2013 and were thereafter adjourned, by consent, until following negotiations between the legal representatives for the Crown and the Offender, pleas of guilty were entered in the manner in which I have described on 4 October 2013, with those pleas being accepted by the Crown in full discharge of the indictment. 16Counsel for the Offender submitted that he should receive a 25% discount on sentence for his pleas of guilty, in circumstances where, for a very large part of the period since he was arrested and charged, the Offender has been unfit to be tried. It was submitted that the Court should approach the Offender's pleas as being entered at the earliest possible opportunity. 17The Crown accepted that the Offender's legal representatives were not in a position to obtain instructions from him in relation to a plea until it was determined that he was fit to be tried. It was noted, as well, that Count 1 had not been an original charge, but had been included as a result of an ex officio direction after the Offender had been found fit to be tried in the Supreme Court. The Crown submitted that it was open to the Court to extend a 25% discount to the Offender in these circumstances. 18It is the case that the Offender had been found unfit to be tried with respect to the District Court matters on 21 November 2011. It seems clear that he would not be fit to be tried (or to enter a plea) upon the Supreme Court matters for the same reason. This state of affairs continued and existed at the time of his committal for trial on 18 June 2012. He did not become fit to be tried (or to enter a plea) until 15 March 2013. It was only after that finding had been made that his legal representatives were in a position to take instructions from him for the purpose of advising him as to a plea. He was not arraigned in the Supreme Court until 4 October 2013, at which time the pleas described earlier were entered. 19In these unusual circumstances, I am prepared to allow the Offender the benefit of a discount of 25% for his pleas of guilty: R v Zeilaa [2009] NSWSC 532 at [17]-[19]; Hawkins v R [2011] NSWCCA 153 at [22]-[26].

Other Persons Sentenced Arising Out of Related Criminal Activity 20A number of persons have been sentenced for a range of offences in this Court and the District Court, with those offences being related, in one way or another, to those for which the Offender is to be sentenced. It is not necessary to recite in detail those persons and their offences and sentences in these remarks on sentence. A list of the persons, and decisions of Courts which have passed sentence upon each of them, is contained in my sentencing decision of 29 November 2013 - R v Karimi; R v Khoury; R v Mir (No. 11) [2013] NSWSC 1761 at [11]-[13] (and in earlier sentencing decisions referred to in that judgment). 21The offences for which the Offender is to be sentenced are different, in a number of significant respects, from those for which other persons have been sentenced.

Findings of Fact 22A lengthy Agreed Statement of Facts was placed before the Court for the purpose of sentencing the Offender. It is not necessary to set out in these remarks the very considerable detail contained in the Agreed Statement of Facts. It will suffice to refer to an overview of the facts, followed by an assessment of the role of this Offender in the crimes for which he is to be sentenced. 23It will be observed that Count 1 picks up the participation by the Offender in a criminal group in a period between 1 June 2010 and 4 July 2010. During this period, the specific offences contained in Counts 5, 7 and 8 and in the Form 1 offence were committed. Participation in a Criminal Group in June 2010 24In June 2010, the Offender (then aged 20 years) was living with his partner, Kayla Rosso, in a bed-sitter unit at Villawood. Living in the adjoining bed-sitter unit were John Khoury ("Khoury") (29 years old) and his partner, Aimee Walsh ("Walsh") (18 years old). 25In a period encompassing at least 1 June 2010 to 4 July 2010, Khoury was the head of a criminal group involved in the supply of ice, methylamphetamine and cannabis. The group was known as the United Brotherhood and the Offender was a member of the group. Khoury was looking to expand the drug business of the criminal group by putting out of business other drug suppliers in the area of south-western Sydney. The plan was to conduct armed home invasions of persons believed to be drug dealers, with the intention of terrorising the occupants of houses and taking drugs and money. To achieve this aim, Khoury looked to recruit more persons to the group. 26In June 2010, the Offender was assisting Khoury and a co-offender, Mohammad Jawad Karimi ("Karimi") (22 years old), with respect to drug supply. In that context, they met Anaterea Tamapua ("Tamapua") (20 years old), a criminal with whom Khoury determined to form an alliance. 27Over a period of days, the criminal group met at Khoury's Villawood address, known as "the Compound". Plans were made to carry out home invasions. For this purpose, Tamapua arranged for a number of young men, who had worked with him in other criminal enterprises, to become involved. 28On 29 June 2010, a meeting took place at the Compound and a plan was hatched for an armed robbery to be carried out on the premises of an uncle of an ex-girlfriend of Khoury. The plan was to rob a number of firearms lawfully retained at premises in Lakemba, including a .357 Desert Eagle semi-automatic handgun which Khoury had a particular desire to obtain. There was also a plan to carry out a home invasion at premises at Ashcroft which were believed to be occupied by a drug dealer. 29On 29 June 2010, a number of young men set off to carry out the home invasion of the Lakemba premises to obtain the firearms. They were armed with a shortened .22 calibre long rifle. 30Before the group of home invaders left the Compound, the Offender took his partner, Kayla Rosso, to the Liverpool Hospital Casualty section for attention. 31The group of invaders were unsuccessful in their attempt to carry out a robbery of the Lakemba premises to obtain firearms. They returned to the Compound, where Khoury was told what had happened. Thereafter, it was decided that the group would carry out the home invasion of the Ashcroft premises. 32The group of home invaders set off in a vehicle for this purpose, with one of them armed on this occasion with a machete, and another with the shortened .22 calibre long rifle. 33The group carried out a home invasion of the Ashcroft premises occupied by James Stiff and his family. As the home invaders burst into the premises, one of them struck James Stiff to the left arm with the machete causing a deep cut down to the bone. Demands were made for property. After a no-doubt terrifying process of threats and the use of force, the group left the Ashcroft premises with a plastic container in which there was a small quantity of cannabis. A laptop computer was also stolen from the premises. 34Immediately after the home invaders departed, Kearin Stiff, the son of James Stiff, took his father to Liverpool Hospital for emergency treatment. James Stiff's left arm was bleeding heavily and was wrapped in a shirt. 35Coincidentally, the Offender, who was still at Liverpool Hospital with his partner, observed the badly injured James Stiff and his son enter the Emergency Department. The Offender immediately connected this event with the home invasion which he understood was to be carried out that night. Over a period of time, the Offender made telephone contact with Khoury to report to him what was happening at the hospital with respect to the victim of the home invasion. Events on 1-2 July 2010 - Count 5 and the Form 1 Offence 36On the afternoon and evening of 1 July 2010, a number of members of the criminal group assembled at Chester Hill. At that time, Khoury was taking over shop premises at 182 Waldron Road, Chester Hill, to operate as a type of variety store. 37Tamapua, Thomas Byquar ("Byquar") (18 years old) and others arrived at Chester Hill by train in the early evening. They walked to Khoury's shop where they met Khoury, Karimi, Walsh and the Offender. Also present was Mahdi Mir ("Mir") (20 years old), the cousin of Karimi, and Eliza Brown (18 years old), a friend of Mir. Tamapua introduced Byquar to Khoury. Khoury asked Byquar if any more boys could be recruited as there was going to be "a test tonight". Byquar sent a text message to his cousin, Tomasi Natuba ("Natuba") (19 years old), asking if he wanted to be recruited to "United". Natuba agreed and he set off for Chester Hill. 38In the meantime, a group of people including Tamapua, Byquar, Karimi, Mir and Eliza Brown went to the nearby Chester Hill hotel to await the arrival of Natuba. Whilst at the hotel, others arrived there, including the Offender. 39Discussions took place between the Offender and Tamapua to arrange transport for the upcoming criminal activities. 40Soon after 9.45 pm on 1 July 2010, the members of the group left the Chester Hill Hotel and walked to Khoury's shop. Discussions took place there in the presence of the Offender. Those discussions included the introduction of Natuba to Khoury, the selection of two home invasions to be carried out that night - the "Beanie Boy" job at Warwick Farm and the "Jacob job" at Lurnea. The persons to carry out these two home invasions were selected following discussions between Khoury, Karimi and Tamapua, with MA (17 years old), Byquar, Natuba and Mir being selected. Khoury had a number of boxes of Elephant brand meat cleavers in the shop. Khoury obtained four of these heavy meat cleavers which were given to the four men who were to carry out the home invasions that night, together with gloves. 41Byquar, Natuba, Mir and MA travelled in a Tarago Van, together with Tamapua and Karimi, with the vehicle driven by David Ramos ("Ramos") (18 years old). The Offender, together with Khoury, Walsh and other persons, remained at Khoury's shop. 42At about 10.45 pm, Byquar, Natuba, MA and Mir entered premises on the Hume Highway, Warwick Farm, each armed with a meat cleaver and each wearing gloves. It was believed (wrongly) that these were the premises of "Beanie Boy", a person known to Tamapua. In fact, the premises were occupied by Maxine Rogers (41 years old) and her two daughters (aged nine and 10). 43The four home invaders entered the premises demanding drugs and money. An unsuccessful search was made of the premises for drugs and money, and the invaders stole the mobile phone of Maxine Rogers and a laptop computer which they found in the premises. It was assistance provided by the Offender to these home invaders in the early hours of 2 July 2010, which gave rise to the offence contained on the Form 1. 44The group in the Tarago Van then set off to carry out the "Jacob job" at Lurnea. Karimi guided the others to his cousin's premises at Granville, so as to obtain precise directions to the Lurnea premises. Karimi and Tamapua entered a white car driven by an associate of Karimi and the two vehicles travelled together to the Burgess premises in Clingan Avenue, Lurnea. 45Karimi pointed out the house which was associated with Jacob Burgess. The same four home invaders (Byquar, Natuba, MA and Mir) got out of the Tarago Van, with each being armed with a meat cleaver. The four men went to the front of the Burgess house. At that time, the occupants of the house were Tracey Burgess (47 years old), her son, Kesley Burgess (25 years old), his girlfriend, Kristal McLachlan (24 years old), and a family friend, Gary Venus (56 years old). Jacob Burgess was not in the house at that time. 46The invaders knocked on the door and Gary Venus opened it. At that point, the four men burst into the premises, pushing Gary Venus to the floor. Tracey Burgess came out of her bedroom and saw the armed men in the house. Natuba ran after Tracey Burgess down a corridor leading to the bedrooms. Natuba demanded to know the location of drugs and cash. Natuba grabbed Tracey Burgess by her nightie and pushed her whilst demanding money. He threatened to kill her whilst swinging his meat cleaver towards her, with the tip of the blade glancing the palm of her left hand before impacting heavily on the laundry door. 47Kesley Burgess opened his bedroom door and saw Natuba attacking his mother. Kesley Burgess armed himself with a sword that was located in the house and told Kristal McLachlan to stay in the room. Kesley Burgess also pushed his mother into the bedroom with Kristal McLachlan. 48Kesley Burgess lunged at Natuba, wounding him in the shoulder. A "000" call was made by Kristal McLachlan when one of the invaders demanded that she cease. 49After Kesley Burgess had struck and wounded Natuba, the home invaders turned on Kesley Burgess striking him with their meat cleavers. Natuba himself, in a state of rage, turned over a coffee table and struck Kesley Burgess with a meat cleaver. 50Kesley Burgess had suffered a series of very severe wounds to various parts of his body. The characteristics of his wounds indicated that they had been inflicted by sharp-edged instruments in a chopping or slashing motion. 51Tracey Burgess witnessed the attack upon her son. She went into the kitchen a grabbed a tin in the shape of a Jim Beam racing car containing some cannabis, and threw the tin at one of the invaders. Before leaving, the invaders stole Tracey Burgess' handbag and beach bag which were located in the premises. 52Emergency assistance was summonsed to the house. Efforts were made to treat Kesley Burgess who was transported to Liverpool Hospital. He passed away at 9.15 pm on 2 July 2010. 53The invaders fled the Burgess house and returned to the two vehicles parked nearby. The group returned to Khoury's shop at Chester Hill, arriving soon after midnight. Khoury, the Offender and others were waiting in the shop when the occupants of the two vehicles returned. There was discussion about what had happened during the offences. Mir stated that he had chopped Kesley Burgess with a meat cleaver. Byquar also detailed to the group what he had done, including a swing at the victim which missed, hitting Byquar's own toe. 54There was discussion concerning what was to be done about Natuba's injury. The Offender assisted Natuba by attending to his injury and bandaging it with some clothing. 55Three bloodstained meat cleavers had been placed on a towel in the back of Khoury's shop. The Offender was standing at a sink, and he commenced to wash blood off the meat cleavers which had been used in the attack upon Kesley Burgess. 56Natuba was conveyed to Bankstown Hospital by two members of the group. A false story had been devised to explain how Natuba had come to be injured and, initially, he gave this false account to hospital staff and police who later attended the hospital. After some hours, Natuba told the truth to police about what had happened that night, and thereafter he assisted the police with their investigation. During 2 July 2010, police obtained warrants for telephone intercepts with respect to the telephones of a number of persons, including Tamapua. 57The actions taken by the Offender in the early hours of 2 July 2010 at Khoury's shop constituted the offences contained in Count 5 and the Form 1 offence. Events on 3-4 July 2010 - Counts 7 and 8 58On the morning of 3 July 2010, major media outlets were reporting that Kesley Burgess had died. During the afternoon of 3 July 2010, a meeting took place in Khoury's unit at Villawood, attended by (amongst others) Khoury, Tamapua and Karimi, at which Byquar introduced John Unasa ("Unasa") (19 years old) to the group. Discussion took place in which Unasa was recruited to the group for the purpose of carrying out home invasions. 59At about 6.00 pm, Byquar and Unasa left the Compound. At about 7.25 pm, surveillance operatives observed Khoury, Tamapua, the Offender and others at the Compound. The group discussed the death of Kesley Burgess. 60On the evening of 3 July 2010, Unasa and Byquar attended the Michael Wenden Aquatic Centre at Miller, where a Polynesian night was to take place to raise funds. About 350-400 people of Polynesian descent, including families with children, attended the event where food and alcohol were being consumed. Security guards were in place to provide security. 61Later that evening, Unasa, Byquar and a couple of other males became involved in a confrontation with a male who was allegedly part of a gang called the "Miller Boys". One of the security guards saw a group of males (including Unasa) having an argument with another group of males, who were urging Unasa's group to come up the road to fight them. A bottle was thrown at Unasa's group, leading to the security guard urging the young men to calm down as they were present at a charity event. Security guards arranged for Unasa and his group to be taken inside to avoid a further confrontation. The security guards called police and, when the police arrived, the other group were seen to disperse and leave the area. 62As Unasa was being told to go inside by security guards, he told Byquar to "ring the boys and get them to come down". Byquar then used his mobile phone to call other members of the United Brotherhood to help them. A series of telephone calls then ensued, with many of the calls being intercepted by police. 63A number of the telephone calls are reproduced in the Agreed Statement of Facts. Between 11.28 pm on 3 July 2010 and about 1.00 am on 4 July 2010, calls were made revealing a highly agitated Byquar calling for reinforcements to attend Miller with guns, knives and "choppers". At various times, Byquar said (to Karimi), "There's going to be a killing spree", "We will stab these cunts bro", "We're gonna kill them tonight", with variations on these themes being repeated. 64At one point, at 11.55 pm, the Offender spoke to Tamapua and there was discussion that Unasa was in trouble at Miller. The Offender said, "I'm heading back to the compound to get something and then will head to get you straight away ... My Mrs is driving". 65At 11.59 pm, the Offender spoke to an unknown male, and the two men discussed Byquar's problem and the call for help which had been made. The Offender said, "I'm going to pick him up in five seconds, I'm just gonna go home and grab the little friend, I'm gonna go home and grab the little friend and then bang I'm there". 66The content of this call clearly relates to the Offender obtaining arms for the purpose of attending Miller, with others, to assist Byquar in the planned violent confrontation which had been discussed. 67Other calls took place indicating the movement of persons to Khoury's unit at Villawood to obtain weapons, and then to Tamapua's home at Claymore with a group of four men then heading to Miller. 68The journey was made in a white Ford Laser owned by the Offender's partner, Kayla Rosso. She drove the Offender and Richard Vergara (19 years old) ("Vergara") to Tamapua's premises at Claymore. She remained at those premises with Tamapua's partner. The Offender then drove the white Ford Laser in which Vergara, Tamapua and Karimi travelled. 69Telephone contact was maintained during the journey with discussions occurring with Byquar and Khoury, amongst others. 70At about 1.15 am, police intercepted the white Ford Laser near Maxwells Avenue, Miller. Understandably, given the discussions overheard by way of telephone intercepts, police were concerned as to what would happen should the vehicle (and its occupants) link up with Byquar at Miller. 71Police located a pocket knife in the Offender's front right pocket. A sheath containing a machete (which had been used in the home invasion at Ashcroft in which James Stiff was injured) was located in the rear of the vehicle. A bag containing the shortened .22 calibre long rifle (also used in the offences committed on 29 June 2010) was located in the rear of the vehicle. The firearm was in working order and was loaded with one round of ammunition in the breach. A knife was located in the boot of the vehicle. 72In due course, Khoury's DNA was located on the trigger area of the firearm. A partial DNA profile of James Stiff was obtained from the machete. 73Khoury and Byquar spoke by telephone after 1.20 am concerning the whereabouts of the reinforcements travelling in the Ford Laser. Unbeknown to Khoury and Byquar, police had intercepted the vehicle and arrested its occupants. 74Following his arrest, the Offender participated in an electronically recorded interview with police in which he denied (falsely) knowledge of the purpose of the journey to Miller, although admitting that he had been driving the vehicle owned by his partner. 75Following their arrest, the Offender, Karimi, Vergara, Tamapua and Byquar (who had himself been arrested at 1.30 am), were taken to Liverpool Police Station. Listening devices (obtained lawfully under warrant) were located in the cells of the police station, and conversations were recorded between these men on 4 and 5 July 2010. 76By way of example, the Offender is recorded talking to Byquar and Karimi and saying, with respect to Natuba, "Brother, he fuckin leaked, brother he knows he told everyone who the little brother is, who the sister is, who the uncle is, the big brother the big brother everything bro". 77A little later, the Offender says "Straight out bro this cunt's dogging us I'll tell you now". Soon after, the Offender said, "Who gave up the shop? ... Because they asked me and Ricky [Vergara] about it today". 78In further discussion with Karimi, the Offender said, "Did you know brother's house was being watched? ... Brother's house was being watched, the compound". 79Karimi asked what happened to "brother", with the Offender replying, "He's on the run lad ... My Mrs went back there when we got done and that brother left straight away". 80In later conversation after Tamapua had been placed in the cells, the Offender said, "Masi [Natuba] gave up the older brothers too". 81The recorded conversations demonstrate clearly the knowledge which the Offender had of the criminal group and its structure and activities, together with his support for the group. Evidence from Khoury's Shop 82At 11.04 am on 4 July 2010, an SMS message was intercepted between associates of the involved parties which read, "Guess what bishop [Khoury] and amy [Walsh] packed up and chucked a runner". 83On 4 July 2010, police executed a crime scene warrant at Khoury's shop, with forensic examination of the premises continuing over a three-day period. The examination found several sources of human blood and extensive evidence of blood cleanup. Subsequent analysis identified the blood as being that of Natuba and Byquar. 84The Jim Beam tin taken from the Burgess house was found inside Khoury's shop, with blood smears on it. Fingerprints belonging to Karimi, Khoury and Walsh were detected on the tin, as well as the DNA and fingerprints of Kesley Burgess. 85Fingerprints belonging to Khoury, the Offender, Vergara, Karimi, Walsh and MA were found at different areas within Khoury's shop. 86Police also located numerous Elephant brand meat cleavers in the shop. 87After the arrest of co-offenders on 4 July 2010, Khoury and Walsh moved out of the Compound and lived with Khoury's parents for a short time. It also appeared that they vacated Khoury's shop. 88In the early hours of 29 September 2010, police arrested Khoury and Walsh at premises in Lancaster Street, Ingleburn. A search warrant was executed on the premises and located there was a bag containing three Elephant brand meat cleavers wrapped in a towel. 89Forensic analysis of the meat cleavers revealed the Offender's fingerprint on the blade of one of the meat cleavers, the Offender's DNA on the handle of one of the weapons and blood of Kesley Burgess on the blade of one of the meat cleavers.

Conduct of the Offender Relied Upon With Respect to the Offences For Which Sentence is to be Passed 90The preceding narrative refers to a range of events and activities involving the Offender in a period between 1 June 2010 and 4 July 2010. 91The Agreed Statement of Facts draws together a number of matters to shed light upon the particular offences for which the Offender is to be sentenced. It is useful to refer to these matters to encapsulate the criminality involved on the part of the Offender with respect to Counts 1, 5, 7 and 8, and the Form 1 offence to be taken into account on sentence for Count 5. Count 1 - Participation in a Criminal Group 92For the purpose of this offence, reliance is placed by the Crown on acts of participation of the Offender in the criminal group known as United Brotherhood, other than the acts founding specific offences for which the Offender is to be sentenced. 93These acts include: (a)participation in the drug business of the group - the Offender occupied a position in the group as Khoury's "left hand man" (with Karimi being the "right hand man") - the Offender would assist in the collection of drug supply money for Khoury and assisted in the standing over of a drug dealer (Kevin), who had been slow in paying; (b)the Offender's role in contacting Tamapua and taking him to the Compound to meet Khoury, and his attesting that Tamapua (whom he knew) was trustworthy to join the group and participate in their criminal activities; (c)telephone calls made by the Offender on 29 June 2010 to Tamapua, Vergara and MA, leading to the criminal group meeting at the Compound to discuss and plan jobs, and the Offender's presence in the early evening at the Compound where planning for the Lakemba job (to obtain firearms) was discussed, before the Offender took his partner to Liverpool Hospital; (d)the presence of the Offender at Khoury's shop at Chester Hill with members of the criminal group, during an altercation on 30 June 2010, and his actions to support members in a confrontation that day; (e)the Offender's call to Khoury from Liverpool Hospital on 29 June 2010, informing him of the arrival of the injured James Stiff, and later calls keeping Khoury informed as to what was happening at the hospital; (f)the Offender's acts on 1 July 2010 prior to a decision being made as to the two jobs to be carried out that night - this included directing Tamapua and those with him to attend the shop at Chester Hill, the Offender's presence when discussions took place about recruiting other persons, and later on entering the Chester Hill Hotel and telling Tamapua to get a car, which resulted in contact being made with Ramos to attend in the Tarago Van; (g)the Offender's presence at the Compound on 3 July 2010, with other members, when discussions took place about the death of Kesley Burgess and the introduction of Unasa as a new recruit, together with discussions of further jobs. Form 1 Offence - Accessory After the Fact to the Armed Robbery of Maxine Rogers Count 5 - Accessory After the Fact to the Armed Robbery of Tracey Burgess at a Time When Grievous Bodily Harm was Inflicted on Kesley Burgess 94The acts of the Offender relied upon with respect to these offences are as follows: (a)the Offender attended to the injury of Natuba; (b)the Offender cleaned three of the meat cleavers, being the weapons used in both robberies; (c)the Offender assisted the cleaning up of Khoury's shop; (d)the Offender was present and offered support when the stolen property from both robberies was examined and divided up; (e)the Offender took part in calls to those who took Natuba to Bankstown Hospital, so that members of the group were kept up to date as to what was happening. 95The Offender had full knowledge, from admissions made in his presence by Natuba and Byquar, as to who was responsible for the offences and he was party to efforts to ensure that offenders left the shop to avoid detection. 96This assistance was provided at a time prior to the death of Kesley Burgess and, accordingly, it occurred at a time when the Offender was aware that Kesley Burgess had suffered grievous bodily harm. Count 7 - Possession of an Offensive Weapon, Whilst in Company, to Cause Grievous Bodily Harm with Intent to do Grievous Bodily Harm Count 8 - Possession of a Prohibited Firearm 97Telephone intercepts and other evidence established that, on 3 and 4 July 2010: (a)the Offender was aware that Byquar had requested weapons to be brought to Miller, for the purpose of inflicting grievous bodily harm on a person or persons; (b)the Offender was aware that the request was a result of some conflict involving Unasa, a potential new recruit to the United Brotherhood; (c)the Offender agreed to pick up Karimi, and a firearm and another weapon, from Khoury's premises at the Compound; (d)the Offender, together with Vergara, picked up Karimi, the weapons and then Tamapua to take them to Miller; (e)the Offender knew that the three persons he was driving to Miller, in the Ford Laser, were going to engage in a confrontation to assist Byquar and Unasa in inflicting grievous bodily harm to a person or persons; (f)the Offender was aware that the firearm was located in the vehicle; (g)the Offender was not authorised to possess such a firearm.

Victim Impact Statement 98Tracey Burgess made a written victim impact statement which was tendered on sentence. Her statement is relevant to sentence with respect to Count 5. 99In earlier remarks on sentence with respect to other offenders, I have referred to the impact upon Tracey Burgess of the criminal events of 1 July 2010: R v Karimi; R v Khoury; R v Mir (No. 11) at [219]-[231]. 100In the context of the sentencing of the present Offender, I take into account that Tracey Burgess was a direct victim of the armed robbery offence, in relation to which the Offender was an accessory after the fact in Count 5. The events of that night, including the armed robbery of Tracey Burgess, have had a devastating effect upon her. 101In addition to the victim impact statement, a report dated 19 September 2012 of Dr Sidney Lo stated that, as a result of the events of 1 July 2010, Tracey Burgess experiences a high degree of stress, which has had a detrimental effect upon her physical health in a number of ways. 102I have taken into account on sentence for Count 5 the effects of the armed robbery offence upon Tracey Burgess.

Subjective Circumstances of the Offender 103The Offender was born in February 1990 and was 20 years old at the time of the offences. He is now 23 years old. 104The Offender has a criminal history. In June 2006, he was placed on a good behaviour bond in the Children's Court for common assault. In January 2007, he was placed on a further good behaviour bond in the Children's Court for possession of an unregistered firearm. In June 2009, he appeared before the Liverpool Local Court, with respect to charges of assault occasioning actual bodily harm, common assault and contravene a domestic apprehended violence order, and was sentenced by way of a 12-month good behaviour bond, subject to the supervision of the Probation and Parole Service and to obey all reasonable directions of that Service, including accepting the guidance of a psychiatrist or psychologist. 105It will be observed that the 12-month good behaviour bond granted on 25 June 2009 remained current for part of the period encompassed by Count 1. 106In addition, the Offender was on conditional bail at the time of the commission of all offences for which he is to be sentenced. This bail related to the matters in relation to which issues arose concerning his fitness to be tried in the District Court in 2011, 2012 and 2013. Those matters are listed for trial in the District Court in March 2014. They involve allegations of serious domestic violence against his then partner. 107No oral evidence was given at the sentencing hearing. Counsel for the Offender tendered a report dated 13 November 2013 of Dr Adam Martin, forensic psychiatrist. In addition, the determination dated 28 February 2013 of the Tribunal was also tendered in the defence case. Finally, a letter from the Offender's mother was tendered on sentence. 108The documentary evidence reveals that the Offender was born in New Zealand, the middle of five children and moved to Australia with his family when he was 12 years old. He is of Maori heritage. 109The Offender was raised in a stable home, with his father being a hard-working man engaged as a truck driver and his mother always working, currently as a cleaner. 110The statement of the Offender's mother, and the psychiatric material in evidence, indicates that the Offender was sexually abused by a family friend at about the age of 14 years, with that person subsequently being charged and imprisoned. Thereafter, the Offender demonstrated behavioural and other problems, including excessive consumption of alcohol. 111The Offender had been in a relationship in 2009 of which there was a young child. He and his partner separated, and events occurred in December 2009 involving that partner, giving rise to the pending charges in the District Court. 112The Offender has a history of admissions to psychiatric units at Liverpool and Campbelltown Hospitals, having first being admitted at the age of 18 years when he was diagnosed with schizophrenia. 113Dr Martin examined the Offender and has prepared a number of reports since July 2011 concerning fitness issues. Dr Martin's report of 13 November 2013 confirms his earlier diagnosis of schizophrenia. 114Dr Martin last assessed the Offender in September 2013, when he was continuing to experience psychotic symptoms and was being prescribed antipsychotic medication. Dr Martin noted that, prior to the Offender entering custody in July 2010, there was clinical documentation describing his reports of psychotic experiences similar to what was described in assessments conducted by treating psychiatrists in prison. There are documented episodes of highly disturbed behaviour in the community, including deliberate self-harm, suicide attempts and impulsive acts. 115Dr Martin is of the opinion that the Offender's mental illness, whilst not directly related to the offending in a causative way, would more likely than not have had a significant detrimental impact on his judgment or ability to make sensible decisions, and impaired his capacity to consider adverse consequences of his actions. Dr Martin considered the Offender to be a person who has a tendency to poor planning, with poor planning and poor scope for coping abilities, as a direct result of his mental illness. 116Dr Martin stated that, whilst in custody, the Offender will need to see Justice Health mental health clinicians, as he has done up to this time. In addition, Dr Martin observed, with respect to the Offender's future conditional liberty, that there is a higher risk of "patchy medication compliance" and subsequent worsening of his mental state, so that ongoing treatment and support from mental health clinicians will potentially ameliorate some of the risk of criminal recidivism. In addition, Dr Martin considered that the Offender will require intensive social support in the community when released. 117The Offender's mother has visited him regularly since he has been in custody, and has observed a very noticeable improvement since he was transferred to Parklea Correctional Centre. 118It seems clear that there will be a family support network available to the Offender when the time comes for his release.

Sentences Imposed Upon Related Offenders 119In sentencing the present Offender, I will have regard to the principles of parity and proportionality of sentence, to the extent that they are applicable. However, considerable caution must be exercised in considering these factors in this case. 120Firstly, no other offender has been sentenced for the offence contained in Count 1. 121Secondly, with respect to Count 5, only two other offenders, Walsh and Vergara, were sentenced in the District Court for offences of accessory after the fact for criminal offences committed in the Burgess house. Other offenders were sentenced for the murder of Kesley Burgess and the armed robbery of Tracey Burgess. 122I accept the Crown submission that the sentences imposed in the District Court upon Walsh and Vergara are of little assistance in sentencing the present Offender on Count 5. Quite apart from the different roles of Walsh and Vergara to that of the Offender, both Walsh and Vergara had no prior convictions. In addition, Vergara's offence of accessory after the fact carried a maximum penalty of imprisonment for five years. 123Thirdly, with respect to Counts 7 and 8, there are also significant points of distinction between the Offender and others sentenced for offences arising out of this conduct. Tamapua's offence under s.33B(2) Crimes Act 1900 (the comparative charge to the Offender's Count 7) involved an intention to commit affray, a clearly lesser offence than the Offender's intention to commit grievous bodily harm. Vergara's offence was in the same terms as the Offender's Count 7. However, that sentence formed one of a number of sentences, with totality serving to explain a low sentence for Vergara on Count 7, in circumstances where his major sentence related to the machete attack upon James Stiff. Further, Vergara had no prior criminal history. Not only did the Offender have a prior criminal history, but his offences were committed whilst he was subject to conditional liberty. I accept the Crown submission that Vergara's sentence is of little assistance in sentencing the present Offender. 124With respect to Count 8, Walsh, Vergara and Tamapua were each sentenced for this offence, as were Khoury and Karimi. The sentences imposed upon Vergara, Tamapua, Khoury and Karimi are of relevance to the sentencing or the present Offender. That said, the sentences imposed upon Tamapua, Khoury and Karimi were influenced significantly by the consideration of totality, as indeed was the sentence imposed upon Vergara. Further, Tamapua received a 50% discount for his pleas of guilty and assistance, and Vergara received a 25% discount for his pleas of guilty. 125A number of the limitations referred to in Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 at 589 [203] have direct application in these circumstances. The differences which I have recited point to a number of significant practical difficulties in comparing sentences previously imposed, with those to be passed on the Offender: Green v The Queen [2011] HCA 49; 244 CLR 462 at 473-474 [30]. 126With these very significant qualifications, I have nevertheless kept in mind issues of parity and proportionality of sentence for the purpose of sentencing the present Offender.

The Offender's Mental Condition 127I have set out earlier Dr Martin's opinion concerning the Offender's mental condition at various times, as well as material drawn from the February 2013 Determination of the Tribunal. 128It is clear that the Offender had been diagnosed with schizophrenia prior to the commission of the present offences. Sentencing orders made by Courts in 2009 took into account these factors. The 2009 offences involved incidents of domestic violence. 129When interviewed by police following his arrest on 4 July 2010, the Offender indicated that he had been diagnosed with schizophrenia and was on medication. 130It is the case that the Offender, in the five-week period encompassed by the charges for which he is to be sentenced, had been an active member of a criminal group engaged in very serious crime. He played a significant role in that criminal group as a senior assistant to Khoury. His criminal activity was multifaceted. Clearly, the Offender was motivated by financial gain. 131In addition to the conduct giving rise to Count 1, the Offender committed specific offences as contained in Counts 5, 7 and 8, and the Form 1 offence to be taken into account on sentence for Count 5. These offences involved the Offender, whilst fully aware that serious crimes had been committed, continuing his active involvement in crime. 132The events giving rise to Counts 7 and 8 involve his willing participation in a type of call to arms, on behalf of the criminal group, to assist Byquar at Miller, with the Offender himself driving the vehicle containing his three associates from Claymore to Miller. 133Although the Offender suffered from a diagnosed mental illness at that time, he was able to function in the various ways giving rise to the crimes for which he is to be sentenced. Dr Martin does not suggest, for understandable reasons, that there was a causal link between the Offender's mental condition and his offences. The impact of the mental condition is said to have borne upon his ability to make sensible decisions, with an impaired capacity to consider adverse consequences. 134Counsel for the Offender made submissions by reference to the well-known principles in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]-[178]. I will, in turn, refer to each of these aspects. 135Although the Offender's mental condition impacted to some extent upon his ability to make sensible decisions at the time of the offences, I do not consider that this warrants any significant reduction in the assessment of the Offender's moral culpability for the offences. The offences involved a course of conduct over a period of time, and not an offence or offences committed in unexpected circumstances where a type of flawed judgment may have greater operation. 136In reality, the Offender was part of an organised crime group for a period of five weeks, with his involvement ceasing only because he was arrested by police, when almost at the point where a very violent crime would take place with him as an active and intentional participant. 137Counsel for the Offender submitted that the Offender's mental condition is such that he is in an inappropriate vehicle for general deterrence. I take into account the Offender's mental condition in assessing the role of general deterrence on sentence in his case. However, he was a senior participant in an organised crime group over a period of time. His moral culpability is very significant. There is an important role for general deterrence to play in a case such as this, even allowing for some modification because of the Offender's mental condition. The role of general deterrence in warning others of the consequences of involvement in gang crime remains significant in this case. 138It was submitted for the Offender that his mental condition was such that a custodial sentence will weigh more heavily on him because of his mental condition. The evidence reveals that the Offender is receiving what appears to be effective treatment whilst he is in custody, at least in his present location. His mother has expressed a favourable view concerning his current state. I am not satisfied, on the evidence, that imprisonment under the sentences which I will impose will render his custodial experiences more onerous than for other persons. 139I am satisfied that specific deterrence remains an important consideration in sentencing the Offender, notwithstanding his mental condition. The present offences were committed whilst he was subject to conditional liberty, and involved a very significant escalation in the form of criminality in which he was engaged. As I have already noted, the present offences were committed over a period of weeks, and involved the Offender's preparedness to be a senior figure in organised criminal activity. 140Finally, the Offender's mental condition does raise for consideration the countervailing factor of risk of reoffending and future dangerousness. I have already noted Dr Martin's concern with respect to recidivism, and the need for a structured program in the Offender's case. If the Offender complies strictly with his medication regime and other controls which would be put in place in the community, then the risk of recidivism will be reduced. 141However, the Offender was subject to conditional liberty, including the requirement to comply with psychiatric treatment, at the time when he committed the present offences. Those controls did not succeed in placing a brake upon the Offender, with his criminal conduct escalating in the offences for which he is to be sentenced. 142A guarded approach is required on the question of assessment of his prospects of rehabilitation and the risk of reoffending.

Accumulation and Concurrency of Sentences 143Counsel for the Offender submitted that the sentences for Counts 7 and 8 should be served concurrently, since the criminality of Count 7 exceeds that of Count 8 and the elements of Count 8 are almost wholly to be found within Count 7. 144The Crown agreed with the submission that it was open to the Court to impose concurrent sentences for Counts 7 and 8. 145I am satisfied that I should adopt this course on sentence for those counts. 146It was conceded for the Offender that partial accumulation was required as between Counts 1, 5 and 7. The Crown submitted that at least partial accumulation as between those counts was appropriate. 147I will take this course in sentencing for these offences.

Determining the Appropriate Sentences 148I have referred to a range of objective and subjective factors to be considered on sentence. It is necessary now to undertake the process of instinctive synthesis for the purpose of passing sentence. In doing so, I will refer to some further principles which apply to the crimes for which the Offender is to be sentenced. 149I am satisfied that each of these offences was of substantial objective gravity. 150The moral culpability of the Offender with respect to Count 1 is high. He was a senior member of the criminal group, which was active for a number of weeks with the aim of financial profit from the sale of drugs and the use of force to bring about that result. His involvement only ceased with his arrest on 4 July 2010. 151Within the graded hierarchy of offences in s.93T Crimes Act 1900, the Offender has pleaded guilty to, and is to be sentenced for, the basic offence under s.93T(1) involving participation. However, he was a persistent participant who maintained his involvement with the criminal group after 2 July 2010, despite his actual knowledge of the violence perpetrated upon victims in home invasions. The offences now contained in s.93T were introduced in recognition of the fact that crimes committed by gangs, whether they be crimes of violence, armed robberies or drug supply offences, are "a far greater threat to the safety and wellbeing of the community than most crimes committed by individuals acting alone" (Second Reading Speech, Crimes Legislation Amendment (Gangs) Bill 2006, Hansard, Legislative Assembly, 30 August 2006). The circumstances of this case represent a vivid example of the mischief which s.93T was intended to address. 152In passing sentence, I have kept in mind the need not to double count conduct in assessing an appropriate sentence for the general offence contained in Count 1, and the specific offences contained in Counts 5, 7 and 8, and the Form 1 offence to be taken into account on sentence on Count 5. 153In relation to Count 5, I am satisfied that there is a high degree of criminality involved in this offence. The Courts have recognised a wide variation in moral culpability of persons charged as an accessory after the fact to serious crimes: R v Farroukh (NSW Court of Criminal Appeal, 29 March 1996, unreported). An important aspect of being an accessory after the fact to any offence is that the offender stands between criminals and the law: R v Faulkner [2000] NSWSC 944 at [40]. In R v Cowen [2008] NSWSC 104, Buddin J said at [16]: "Clearly the community has an interest in ensuring that offenders who have committed serious crimes be brought to account. Accordingly, endeavours made by those who seek to assist such offenders from avoiding detection must be strongly resisted and visited with appropriate penalties. In those circumstances, the nature of the assistance which is provided, the extent to which it assists the principal offender in avoiding detection and the reasons why the assistance was extended, are all factors which are relevant to the exercise of the sentencing discretion." 154In this case, I am satisfied that the Offender was personally involved in the criminal enterprise giving rise to the grave offences committed in the Burgess household, but his involvement fell short of participation as a principal. By the time the offence contained in Count 5 was committed, the Offender was aware of what had happened to James Stiff two days earlier. Of course, the acts constituting the offence in Count 5 involved the Offender being aware that another violent attack had been perpetrated upon a victim (Kesley Burgess) leading to very serious injuries being inflicted by the home invaders. The criminal conduct of the Offender constituting Count 5 did not come about suddenly and unexpectedly, as is sometimes the case with offences of being an accessory after the fact to a crime. The assistance provided by the Offender to the principal offenders was significant. It was not inevitable that they would be detected. But for Natuba determining to abandon his false account and assist police, it is possible that the principal offenders may not have been brought to justice. 155It is necessary to take into account, as well, the circumstances of the Form 1 offence which should operate to increase sentence on Count 5. The Offender was aware that there had been a separate home invasion on the night of 1 July 2010, fortunately not involving any physical injury to Maxine Rogers or her children, but involving the armed robbery of property. 156Counts 7 and 8 involved the Offender continuing to commit crimes with other members of the criminal group. This happened despite the fact that he was aware of the terrible injuries inflicted upon James Stiff and, by 3 July 2010, of the fact that Kesley Burgess had died as a result of the injuries sustained in the home invasion on 1 July 2010. 157Despite this, the Offender assisted in the formation of an armed group of men whom he himself conveyed by vehicle to the intended meeting point with Byquar at Miller, with an intention to cause grievous bodily harm, only to be intercepted by police. Counts 7 and 8 are very serious examples of crimes of this type. 158In approaching sentence on Count 8, I have regard to the standard non-parole period of three years, in accordance with the amendments recently made to ss.54A and 54B Crimes (Sentencing Procedure) Act 1999. 159The Offender was subject to conditional liberty when all offences were committed. He has a criminal history which operates to deprive him of leniency to which he may otherwise have been entitled. 160I take into account the Offender's subjective circumstances, including his mental condition and his life experiences, which appear to have contributed to his mental difficulties. 161The Offender's prospects of rehabilitation must be guarded for reasons explained earlier in these remarks. 162A 25% discount will be applied for the Offender's pleas of guilty. 163Having taken into account all objective and subjective factors and the purposes of sentencing stated in s.3A Crimes (Sentencing Procedure) Act 1999, including the need for general deterrence and specific deterrence, the sentences to be passed for each offence (before application of the 25% discount for pleas of guilty, which will involve some rounding) would be as follows: (a)Count 1 - imprisonment for four years; (b)Count 5 (taking into account the Form 1 offence) - imprisonment for 10 years; (c)Count 7 - imprisonment for 10 years; (d)Count 8 - imprisonment for six years. 164A finding of special circumstances will be made by reason of accumulation of sentences and the need for an appropriate period of parole supervision. In calculating sentences and the level of accumulation, I have had regard to factors including the Offender's youth, the fact that it is his first time in prison and his mental condition. It is not appropriate to have regard to these factors again, double counting them in the Offender's favour, as part of a finding of special circumstances. 165The effective non-parole period must be sufficiently long to allow for an appropriate period of conditional liberty, having regard to the matters raised by Dr Martin and the Offender's background and need for supervision in the community. 166I have regard to the question of totality in determining the total effective non-parole period and head sentence. The aggregation of all sentences for the Offender is to constitute a just and appropriate measure of the total criminality involved: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 164 [15]. The effective non-parole period represents the minimum period which the Offender should serve in custody for all his crimes, having regard to all the purposes of sentencing. The effective balance of term to be set will provide sufficient opportunity for conditional liberty to assist the Offender's return to the community upon release. 167Ray Tuki, will you please stand. 168For the offence contained in Count 1, participation in a criminal group, I sentence you to imprisonment comprising a non-parole period of two years and three months commencing on 4 July 2010 and expiring on 3 October 2012, with a balance of term of nine months commencing on 4 October 2012 and expiring on 3 July 2013. 169For Count 5, the offence of accessory after the fact to the armed robbery of Tracey Burgess and at the time causing grievous bodily harm to Kesley Burgess, taking into account the matter on the Form 1, I sentence you to imprisonment comprising a non-parole period of five years commencing on 4 July 2012 and expiring on 3 July 2017, with a balance of term of two years and six months commencing on 4 July 2017 and expiring on 3 January 2020. 170For Count 7, the offence of whilst in company, possessing an offensive weapon with intent to commit an indictable offence, namely intentionally causing grievous bodily harm, I sentence you to imprisonment comprising a non-parole period of four years commencing on 4 July 2014 and expiring on 3 July 2018, with a balance of term of three years commencing on 4 July 2018 and expiring on 3 July 2021. 171For Count 8, the offence of possession of a prohibited firearm, I sentence you to imprisonment comprising a non-parole period of three years commencing on 4 July 2014 and expiring on 3 July 2017, with a balance of term of one year commencing on 4 July 2017 and expiring on 3 July 2018. 172You will not be eligible for release to parole until 3 July 2018. 173The total effective sentence is one comprising a non-parole period of eight years with a balance of term of three years. 174Before concluding these sentencing proceedings, I would like to make some further comments. The present Offender is the ninth and final person to be sentenced in this Court for offences arising from the activities of this criminal group in June and July 2010. Four other persons have been sentenced in the District Court for related offences, with two persons yet to be sentenced in the District Court for offences relating to the Miller incident on 4 July 2010. 175At the conclusion of the trial of Khoury, Karimi and Mir in June 2010, I made some comments concerning the thorough and effective police investigation in this matter. It seems clear, that the use of telephone intercepts at an early stage allowed the police to intercept the vehicle heading to Miller on 4 July 2010, so as to avoid what would have otherwise been a serious violent confrontation. This action served to protect members of the community. A thorough and painstaking investigation by police led to a very substantial body of evidence called at the trial of Khoury, Karimi and Mir. The police are to be commended for the thoroughness of their investigation in this matter. 176I note the presence of Tracey Burgess in Court, and take this final opportunity to express the condolences of the Court and the community for the great loss and suffering which she has experienced as a result of the terrible events of July 2010.

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: 13 December 2013