19 This was a deliberate, planned, vicious attack on defenceless prisoners who were grossly outnumbered, and I am satisfied that the death of Assad Barakat was nothing more nor less than a gaol execution.
20 The motive for the killing is not clear. During cross-examination of Nader Barakat (T 290-291), it was suggested to him that there had been some indication that there was a feud between extended family members concerning relationships that had formed with a girl, although there was no direct feud between himself or the deceased and Derbas personally. Nader Barakat went along with this suggestion, but I do not accept that this killing was part of any blood feud between families relating to some young girl. That just does not ring true in the context of an attack by this large number of inmates.
21 At the time, the prisoners were serving sentences for supplying prohibited drugs and the Barakats were on remand for similar charges. In these circumstances, it appears to me that the killing was almost certainly drug related, although in what way it is impossible to say. The other alternative is that there was no motive but in view of the organisation, the Barakats' anticipation, and the number involved, this certainly was not a random killing. I cannot be satisfied beyond reasonable doubt as to the details of the motive but in my view, it was probably drug related in some way.
22 Whilst it is relevant when sentencing for the murder convictions that Assad Barakat's death occurred as part of an attack on not one but two fellow inmates, I bear in mind that it is not part of any charge that there was any intention to kill or do grievous bodily harm to Nader Barakat. The only charge in respect of him is common assault and I do not sentence for the murder convictions on the basis that there was any intention to kill or do any physical harm to Nader Barakat.
23 Having regard to the provisions of s 21A(2), I note as aggravating features that the murder offence involved actual violence and the use of weapons, that both prisoners have records of previous convictions, that the offences were committed in company, involved gratuitous cruelty, that the deceased was vulnerable and, although there was only a single victim of the murder, the attack involved two victims and was part of a planned criminal activity. The Crown has also submitted that pursuant to s 21A(2)(g) I should take into account that death resulted, but that is an essential ingredient of the crime of murder and therefore cannot constitute an aggravating factor: R v Way (2004) 60 NSWLR 168 at [106]. The only possible mitigating factor within the terms of s 21A(3) that I can see is the prisoners' long-term prospects of rehabilitation.
24 According to information supplied to Dr Jonathan Carne, psychiatrist and Anita Duffy, psychologist, Iyman Derbas was born in Sydney of Lebanese parents and is the second eldest in a family of seven. He grew up in Punchbowl and has lived there all his life until sentenced to imprisonment. His father had a butcher's shop and subsequently a mixed business until his retirement when the prisoner was about 19 or 20 years old. He attended school to Year 11 and went to work in his father's businesses for about two years until the businesses were closed down and his father retired. He appears to have been an average student and enjoyed sport, particularly Rugby League. After his father retired, he occasionally worked as a floor tiler for another family member but ceased this work because of back pain.
25 About this time he began mixing with local unemployed youths whose lifestyle seemed to be appealing and included gambling on poker machines in hotels and clubs. He soon discovered that the lifestyle was supported by drug dealing and he became involved in that; and he had no other occupation for the two years prior to his initial arrest. He admits to smoking cannabis since he was about 18 or 19 years old, but denied the use of other prohibited drugs or of alcohol.
26 Apart from a conviction for stealing and some other minor offences in 1976, he was arrested in January 1999 on a charge of intimidate police officer in the execution of his duty and ultimately fined, and then arrested again on 25 October that year and ultimately convicted of stalk and intimidate with intent to cause fear of personal injury, 2 counts of assault police officer and 2 counts of resist police officer. For these offences, he served a fixed term of imprisonment from 1 September to 31 December 2002. There was a further conviction for intimidate police officer for which he received a concurrent sentence of 3 months imprisonment.
27 In the meantime, on 25 July 2001, he was arrested and charged with supply a commercial quantity of cannabis for which he was convicted on 20 December 2002 and sentenced to imprisonment for 4 years with a non-parole period of 2 years and 6 months which expired on 9 June 2004.
28 A further non-parole period of 14 days imprisonment was imposed by a Visiting Justice for possessing a prohibited drug in prison, so that his non-parole period ultimately concluded on 23 June 2004. In the meantime, he had been charged with this offence and parole was refused. These offences, although not the most serious show a disregard for the law and civil authority.
29 Since December 2002, he has been housed in the High Risk Management Unit (Supermax) at Goulburn where conditions are quite restrictive. He is in a single person cell, and a maximum of 2 inmates are allowed to associate together at any time. He has access, albeit for limited periods and with no more than one other inmate, to grassed exercise areas, computer and library resources. The program is based on allowing privileges depending on the inmate's degree of participation in the program, or the withdrawal of such privileges in cases of non-cooperation. There are 9 stages by which one can advance and he is currently on the second last stage, namely stage 3 level 2. He has completed an anger management program and his reports from the High Risk Management Unit are generally positive.
30 The program in the unit is described by Corrective Service Officers as a management program rather than a therapeutic program, but the form of management as described by them would seem in the case of willing inmates to advance at least the early stages of rehabilitation. The differences between the regime in the High Risk Management Unit and the general section of Goulburn Gaol are set out in tabular form in Ex R10.
31 Dr Carne was unable to identify any form of mental illness, drug or alcohol dependence but noted that he was brought up in an area, in fact a street, which was noted for its high crime rate. Ms Duffy expressed the view that he has good prospects of rehabilitation.
32 Consistently with his plea of not guilty, he has not expressed any remorse or contrition for the offence except that when interviewed by Dr Carne for the purposes of sentencing, he said "that he felt sorry for the victim and his family".
33 According to information supplied by the prisoner to Dr Olav Nielssen, psychiatrist, and to a Probation and Parole Officer who prepared a report for his 2003 sentencing, Mohamed Rustom was born in Australia, the third of nine children of Lebanese parents. He grew up in Greenacre and was educated to Year 10. He appears to have been an average student. After leaving school, he worked with an uncle at the markets and then for three years with his father in the family fruit shop. For a hobby, he watched and played sport. He commenced using illegal drugs as a result of peer pressure at about the age of 19 years. He tried cannabis but did not like its effect, and his main drug of abuse in the years prior to his arrest was cocaine, using up to 4 grams a day. He also took heroin every few days to help him slow down and get to sleep. He said that after persistent cocaine use, he experienced paranoid ideas and visual illusions, which he was aware were due to his drug use and sleep deprivation.
34 He drank alcohol for some time but ceased because he felt that he was "more open to ridicule" when affected by alcohol. He had had a relationship with a young lady for about two years but told her to move on when he was arrested for the drug offences and realised he would be going to gaol.
35 His criminal record dates back to 1994 in the Children's Court when he was convicted of stealing and he subsequently had convictions for malicious damage, assault, break enter and steal, goods in custody, resist and intimidate police officer and a number of convictions for drive whilst disqualified. For all these offences, he was either fined, given bonds, community service or suspended sentences. In March 2002, he was placed on a bond for 3 years for perverting the course of justice, which apparently took the form of giving a false statement to police in relation to another matter.
36 He was arrested on 10 May 2001 and ultimately pleaded guilty to 2 counts of supply prohibited drugs (heroin and cocaine) and for these, he was sentenced to concurrent terms of imprisonment for 5 years 6 months from 9 June 2001 with non-parole periods of 3 years expiring 8 June 2004. On 16 July 2004 he was refused parole, as these matters were then pending.
37 Dr Nielssen's psychiatric diagnosis of the prisoner was "substance abuse disorder, currently in remission", and no condition associated with an increased risk of further violence. He considered that the prisoner's criminal activity was largely due to his association with an anti-social milieu and his abuse of stimulant drugs, and that his future risk of offending would depend on whether he returned to the same environment or continued to use drugs. He told Dr Nielssen that he regretted taking part in the assault and felt sorry for the deceased's death and for his family, but did not feel directly responsible for his death.
38 The prisoner is also currently housed in the High Risk Management Unit and has also progressed to stage 3 level 2. He has completed a "Positive Lifestyles" course, and generally appears to be co-operating with the program of the Unit.
39 Section 19A of the Crimes Act 1900 provides that a person who commits the crime of murder is liable to imprisonment for life and that a person sentenced to imprisonment for life for murder is to serve that sentence for the term of his or her natural life. Section 21 however of the CSP Act authorises the passing of a lesser sentence whilst s 61 of the latter Act provides that if the conditions set out therein are satisfied, a life sentence is mandatory unless the court exercises its discretion under s 21 to sentence for a lesser period. The interaction of these sections has been considered in particular in R v Harris (2000) 50 NSWLR 409 and R v Merritt [2004] NSWCCA 19.
40 The Crown has submitted that the level of culpability of each of the prisoners in the murder of Assad Barakat is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence, and has drawn my attention in particular to R v Hore [2002] NSWSC 749 and R v Fyffe [2002] NSWSC 751, both affirmed [2005] NSWCCA 3, where life sentences were imposed, and R v Knight [2004] NSWSC 498 where it was not.
41 On the other hand, both of these prisoners are comparatively young men. The environments in which they grew up were seedbeds of criminal activity. There is nothing in the psychiatric or psychological reports which suggests that they are suffering any mental or personality defects which would prevent them, over a period of time, being rehabilitated; and their progress to date, although not spectacular, suggests that they are each making an effort in that regard. I do not suggest that the possibility of rehabilitation is the only matter relevant to the discretion not to impose a life sentence, but in this case, I regard it as significant.
42 The culpability of the prisoners is seriously aggravated by the fact that the crime is the murder of an inmate in a corrective institution by other inmates. As Barr J said in R v Fyffe [2002] NSWSC 751 at [33]:
"It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best that they may are entitled to as much protection as the courts can afford them".