Regina v Iyman Derbas and Mohamed Rustom

Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 No 90

R v Fyffe [2002] NSWSC 751affirmed [2005] NSWCCA 3 R v Harris (2000) 50 NSWLR 409 R v Hore [2002] NSWSC 749 affirmed [2005] NSWCCA 3 R v Knight [2004] NSWSC 498 CASES CITED : R v Merritt [2004] NSWCCA 19 R v Omar Rustom [2005] NSWSC 61 R v Sancar (Ireland J - 19 February 1998) R v Way (2004) 60 NSWLR 16

PARTIES : Regina v Iyman Derbas and Mohamed Rustom

J L A Bennett SC - Crown COUNSEL : G J Drake - Derbas P A Beale / A Moen - Rustom

S Kavanagh - Crown SOLICITORS : William O'Brien Solicitors - Derbas Sir Owen Dixon Chambers - Rustom

• 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2003/133 and 2003/82 REGINA v IYMAN DERBAS and MOHAMED RUSTOM

JUDGMENT 1 HIS HONOUR: Iyman Derbas and Mohamed Rustom have each been found guilty of the murder of Assad Barakat at Parklea Correctional Centre on 4 January 2002 and the assault of Nader Barakat at the same place on the same day. A co-accused, Sham Zreika was also tried on the same charges but the jury were unable to agree whilst Ahmed Cheikho, also known as Ahmed Ebaid was acquitted on a charge of being an accessory after the fact to the murder. 2 The trial commenced on Wednesday, 11 August 2004 after an earlier jury empanelled on Monday, 9 August 2004 was discharged. The jury retired to consider its verdict on 22 September 2004 but due to the illness of one of their number the trial was adjourned early that afternoon. The juror's illness persisted and ultimately, the proceedings were adjourned to Monday, 27 September 2004 when the jury continued their deliberations, returning with their verdicts during the afternoon of 28 September 2004. 3 Since then the sentence proceedings have been adjourned on a number of occasions on the application of the prisoners, as there was some delay in obtaining reports that were sought on their behalf. Neither prisoner gave evidence either in the trial or on the sentence proceedings. 4 As the offences were committed prior to 1 February 2003, Pt 4 (ss 44-63) of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) applies as it existed prior to the amendments effected by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 No 90, but the provisions of ss 3A and 21A of the CSP Act as inserted by that Act do apply. 5 Assad Barakat and Nader Barakat were cousins who had been arrested at the end of 2001 for drug offences and remanded in custody without bail. Initially, they were confined at the Metropolitan Reception and Remand Centre at Silverwater. They became aware that they were at risk and consequently sought help from correctional officers to have arrangements made for their continued confinement at that Centre where they might be safe. 6 Against their wishes both men were transferred to Parklea Correctional Centre on the morning of Friday, 4 January 2002. They arrived about 12 midday and were processed before being delivered into the care of wing officers on duty and were then escorted by them to wing 1B. As they passed between the exercise yards on their way to the wing, voices in Arabic called out "They're here, they're here". Nader Barakat also heard someone say "Iyman, they're here". It appears from the evidence of Officer Kennedy (T 589 ff) that the arrival of the Barakats was drawn to Derbas' attention at about this time by the co-accused, Ahmed Cheikho. 7 The Barakats were shown to their cell in wing 1B by Officer Johnston. They raised with him the concern they had for their safety and he left to arrange for a senior officer to come and speak with them. Rather than remain in their cell, the Barakats chose to go to an open area where they thought they would be safer. They moved out through the wing common room, past the laundry area and onto the ramp leading from the outside of the building and waited there.

8 Within minutes, the Barakats were set upon by other inmates including the prisoners. The attack came from two directions; one group attacked on the ramp and as the Barakats attempted to move inside the wing, a second group came from there. Nader Barakat saw Rustom punch Assad Barakat in the face. Nader was also being punched and grabbed by his attackers but, with the aid of Officer Johnston, managed to reach the safety of the wing office. Officer Johnston then attempted to intervene in the attack on Assad. Rustom was seen to strike the deceased with a pool cue a number of times before it was taken from him by Officer Johnston. Bruising found at post-mortem on the left of the deceased's back overlaying the left shoulder region and a boggy swelling of the scalp were both consistent with blows from the pool cue. 9 Assad Barakat apparently attempted to get to the wing office but got no further than behind the pool table in the common room where the attack continued. Although there were about 8-10 inmates involved in the initial attack as it moved into the common room, there were only three attacking the deceased behind the pool table, one of whom was Derbas. Officer Johnston tried to separate them from Assad Barakat and eventually succeeded in getting two of them off him, at which stage the assault seemed to subside and they appeared to back off of their own accord; but shortly after that he noticed Assad deteriorating and observed that he had been stabbed and was bleeding from an abdominal wound. Nader Barakat said that he observed Derbas involved in this final attack, kicking and ultimately stabbing the deceased. 10 Dr Langlois who carried out the post-mortem examination, identified two stab wounds on the deceased's body in addition to a number of bruises, abrasions and incisions. Assad Barakat died almost immediately. According to Nader Barakat, shortly before Derbas approached Assad in the final attack, Rustom called out in Arabic for everyone to move out of the way. 11 Following the attack on Assad Barakat, the attackers attempted to reach Nader Barakat as he sheltered within the wing office. This group included both Derbas and Rustom and they were endeavouring to get into the office with a lot of swearing and yelling, and he heard Rustom say, "We're going to kill youse". 12 Meanwhile, the prison officers had called a Code Green emergency and other officers came to the wing and ordered the inmates into the yard. In the yard, Derbas was observed washing his hands and later appeared not wearing a shirt although he had been wearing one at the time of the attack. Later DNA testing showed bloodstains consistent with that of the deceased Assad Barakat on the watch and shoes of Derbas. 13 Later that afternoon after being placed in a dry cell, Rustom asked Assistant Superintendent Cunningham how long he was going to remain there and on being told "it would probably be all night" replied, "I should have done a better job on him". 14 The case was left to the jury on the alternative basis that the prisoners were principals, or aiders and abetters or involved in a joint criminal enterprise; and it has been submitted that I should regard them as merely aiders and abetters or participants in a joint criminal enterprise, the object of which was to cause grievous bodily harm. In this regard, it has been submitted that I should not accept the evidence of Nader Barakat who was one of the objects of the attack, the victim of the assault, a drug dealer and a witness who had agreed to give evidence against the prisoners in return for being provided with a letter of comfort from the authorities on his own sentence proceedings; and on those proceedings he had received a discount of 50 per cent in return for his undertaking to give evidence against the prisoners. 15 I have taken these matters into account, but having seen him cross-examined at length in the trial and considered the whole of his evidence, I am satisfied that I should generally accept such evidence, particularly as it is supported in a number of respects by evidence from other witnesses. His evidence of the recognition of the Barakats when they were heading towards wing 1B and the exclamation "They're here" is in part corroborated by evidence of Officer Kennedy of Derbas being alerted to their arrival by Cheikho earlier referred to, his evidence of Derbas being involved in the final attack on Assad at the time he was stabbed is confirmed by the DNA evidence, that of Rustom wielding the pool cue is confirmed by Officer Johnston who took it off him, that of Rustom at the front of the group by Officer Woodin (T 653) who described him as "yelling out and shaking his fists", and that of Rustom being in the subsequent attempt to get into the wing office (though not the threat to kill) by Officers Johnston, Lehn and Woodin. 16 Moreover, when he spoke to the Assistant Superintendent Cunningham at a time when he did not know that Assad Barakat had died, he said "I should have done a better job on him", not "They should have…" or anything similar. 17 For those reasons, I am satisfied that each of the prisoners had an intent to kill the deceased and I proceed accordingly. It is obvious that a number of others were involved in the attack, but I am satisfied that these two prisoners in particular were involved to a major degree. I am also satisfied that the attack was deliberate and planned and I am led to this conclusion by the fact that the Barakats anticipated trouble before they left Silverwater, and spoke to officers of their concern as soon as they arrived in the wing. They knew that something was going to happen. 18 The fact that the attack occurred only about 10-15 minutes after their arrival in the wing indicates those planning the attack were apparently aware that they were expected and had their plans ready, including the knifes or shivs used to effect the stabbing. Some point was sought to be made that Rustom could not have been involved in the planning as he had only come from segregation into the unit earlier that day, but word no doubt travels quickly in gaol, even to those prisoners in segregation, and his degree of involvement, including his threat to Nader Barakat from outside the wing office demonstrates he knew what was going on and was not just carried along by the activities of others.

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".

See also R v Knight [2004] NSWSC 498 at [17], R v Sancar (Ireland J - 19 February 1998) at p 8. 43 A further reason why it is appropriate to impose salutary sentences in respect of murders committed in prison is that because of the prison inmates' "code of silence", it is generally extremely difficult to obtain evidence sufficient to secure a conviction in respect of such murders. Accordingly, where evidence is available and convictions obtained, it is appropriate to impose salutary sentences in an effort to deter others from similar conduct. 44 Having taken these various factors into account, I do not consider that this is a case where s 61 or any other factor requires the imposition of life sentences and I intend to impose determinate sentences, although such sentences will be lengthy. 45 It is also necessary to sentence the prisoners for the assault on Nader Barakat. Although the sentences I intend to impose for the murder relate only to the murder of Assad Barakat without reference to the assault on his cousin, and this consideration constitutes some reason for making the sentences for the assault at least partly cumulative, I have ultimately concluded that, having regard to issues of totality, I should make the assault sentences wholly concurrent. 46 Although the prisoners' incarceration in the High Risk Management Unit is not likely to continue indefinitely provided they continue to co-operate with the Unit's program, I am satisfied that the more onerous and restrictive conditions in that unit constitutes "special circumstances" justifying a variation of the ratio between head sentence and non-parole periods specified in s 44 of the CSP Act. Another factor constituting "special circumstances" is that these sentences are to be served cumulatively to the sentences they were serving at the time of the murder and assault. The sentences will be backdated to the expiration of the non-parole periods of their earlier sentences. 47 Before proceeding further I should put it on record that following the return of the jury's verdict, the brother of the prisoner Rustom in open court made threatening and abusive remarks to one of the jurors using her first name. I accordingly cited him for contempt of court and in the contempt proceedings, he sought to suggest improper contact between the juror and another person, whereupon I caused the Sheriff to make enquiries, which satisfied me that there had been no improper conduct on the part of the juror, and ultimately no evidence was led to support the contemnor's allegations. The details of the Sheriff's enquiries can be found if required in the papers relating to the contempt: R v Omar Rustom [2005] NSWSC 61, file no 2004/2455.

48 IYMAN DERBAS for the murder of Assad Barakat, I sentence you to imprisonment for 24 years, such sentence to be deemed to have commenced on 24 June 2004 and I fix a non-parole period of 17 years. 49 For the assault of Nader Barakat, I sentence you to imprisonment for a fixed term of 2 years, such sentence to be served concurrently with the sentence for murder and to be deemed to have commenced on 24 June 2004. The earliest date on which you will be eligible for release on parole will be 23 June 2021.

50 MOHAMED RUSTOM for the murder of Assad Barakat, I sentence you to imprisonment for 24 years, such sentence to be deemed to have commenced on 9 June 2004 and I fix a non-parole period of 17 years. 51 For the assault of Nader Barakat, I sentence you to imprisonment for a fixed term of 2 years, such sentence to be served concurrently with the sentence for murder and to be deemed to have commenced on 9 June 2004. The earliest date on which you will be eligible for release on parole will be 8 June 2021.

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