REGINA v. KANAAN [2001] NSWSC 959

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70040 of 2000 GREG JAMES, J.

WEDNESDAY 31 OCTOBER 2001 REGINA v. MICHAEL KANAAN SENTENCE 1 HIS HONOUR: On 8 August 2001, verdicts of guilty were returned against the offender by a jury following a lengthy trial. 2 By those verdicts he was found guilty of having murdered Adam Wright and Michael Hurle and of having maliciously wounded Ronald Singleton with intent to do grievous bodily harm to him. These offences occurred at Five Dock on 17 July 1998. 3 Both of the deceased expired on 18 July 1998, despite medical attempts to save their lives. 4 The offender stands convicted of those three offences. He was born on 23 May 1975 and is now 26 years of age. 5 The maximum sentence for each of the crimes of murder is, in the circumstances to which I will shortly refer, a sentence of life imprisonment which, if passed, must be served by the offender in custody for the whole of his life. The maximum sentence for the crime of malicious wounding with intent to cause grievous bodily harm is 25 years. 6 Following the verdicts, the proceedings on sentence were adjourned on the application of both the Crown Prosecutor and defence counsel, to obtain evidence and to prepare written submissions. I have received extensive written submissions from the Crown and Victims' Impact Statements. Oral submissions and evidence of the offender's background have been provided on his behalf. I have taken time to consider the matter closely, since the Crown has submitted that for each of the murder offences the offender should be sentenced to that life sentence to which I have already referred. That sentence has terrible significance: see Regina v. Garforth (Court of Criminal Appeal, unreported 23 May 1994); Regina v. Petroff (Hunt, CJ. at CL., unreported 12 November 1991); Regina v. Baker (Court of Criminal Appeal, unreported 20 September 1995); Regina v. Rose [1999] NSWCCA 327, particularly in the case, as here, of an offender of comparative youth: see Garforth (supra) and Regina v. Harris [2000] NSWCCA 469 at paragraphs 72, 124-134. But that latter decision is authority that the absence of the ability to impose a non-parole period in such circumstances and subjective considerations should not mitigate against the imposition of the life sentence where the heinousness of the crimes, their moral culpability and the lack of prospects of avoiding recidivism, require the sentence to be passed to protect the community: Harris (supra) at paragraphs 79-100; Garforth (supra) at p.5. 7 The offender has a criminal record but has only been convicted of the offence of common assault in 1997. For other earlier matters he had received the benefit of s.556A. That record would not preclude leniency in the event that there might otherwise be found a basis for extending it. 8 Victims' Impact Statements were provided to me from the mother and father of the deceased Michael Douglas Hurle and the family of the deceased Adam Wright. Those persons providing the statements fell within the definition of "family victim" contained in s.26 of the Crimes (Sentencing Procedure) Act 1999. Section 28(3) of that Act provides that the court must receive those statements, acknowledge their receipt and may make any comment on them the court considers appropriate. But, by s.28(4)(b), the court must not consider the statement in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so. 9 It has been held in Regina v. Previtera (1997) 94 A. Crim. R. 76 and in other cases that such statements should not be taken into account for the purposes of determining the punishment to be inflicted on the offender lest there might be a perception that the taking of some lives is to be attended by a higher punishment so that it might be indicated that some lives are of more or less value than others. 10 Nonetheless, it remains appropriate for me to comment as I do that the statements make clear the extent of the tragedy that has occurred to those who made them in being deprived of their loved one who, in each case is shown as a person for whom a high degree of affection was cherished. The court entirely recognises the grief and sorrow of the families of the deceased. 11 There has also been tendered to me a Victim Impact Statement by Ronald Singleton. Ronald Singleton is a primary victim of the offence of malicious wounding with intent to do grievous bodily harm. It would be entirely appropriate that one has regard when sentencing to the effect on the victim of a malicious wounding. However, that statement refers to the devastating effects on Mr. Singleton of his view that his actions had in some way contributed to what had occurred to his two deceased friends. He refers to himself as feeling guilty. I see no basis in the evidence which would afford any logical or rational support for that feeling. What he did at the time may have been ill-advised. But there was no possible basis on which he might have had any prospect of considering his actions could lead to consequences such as those inflicted upon his friends by Mr. Kanaan. 12 I have had regard to his statement only to the extent of making the comment that I have upon it as far as the offences of murder are concerned. Otherwise, it does not assist me in relation to the sentence for murder or the sentence for malicious wounding and I have not taken it into account in determining any of the sentences. 13 The offender had originally been charged with the attempted murder of Ronald Singleton. At an earlier trial, which eventually aborted, after an application made to me, I directed the jury to return a verdict of not guilty on that charge. I did so as I accepted the submission it was not open to the jury to accept that the only rational hypothesis on the evidence involved the necessary element of an intent to kill since the evidence of where the wounding was effected and the immediate surrounding circumstances indicated at the time of the wounding only an intent to cause really serious bodily harm to Mr. Singleton in order to enable the offender and others to escape from the scene of the shootings. The alternative charge as was preferred at the present trial, however, went ahead on the basis of that latter intent. 14 I need not, here, set out in any more detail the matters which caused me to take the course I did, as I published a short statement of my reasons at the time. However, having regard to the evidence, the verdict on that count in this trial is only explicable upon the basis that the jury were satisfied beyond reasonable doubt that the accused intended to cause really serious bodily harm to Mr. Singleton by shooting him in the shoulder at close range with intent to disable him by wounding him. 15 Each of the shootings of Mr. Wright and Mr. Hurle involved a shot being fired at close range to the central part of their bodies. I find each killing was inflicted with intent to kill deliberately formed and in each case carried out with appalling ruthlessness. 16 At trial, it was established by the evidence given by an associate of the offender that when the offender and others in a car were passing by a hotel at Five Dock, the witness noticed two persons having an altercation outside the hotel. He made a remark to those persons which caused one of them, the victim Mr. Singleton, to come over to the car which was in the vicinity of the footpath on which the altercation was taking place, and attempt to punch the witness. Thereafter, the offender left the car and shot Mr. Wright and Mr. Hurle. He also shot Mr. Singleton in the shoulder seriously wounding him. 17 Other eyewitness accounts from people who had been at the hotel or who were passing by, were understandably somewhat chaotic about these events and their order. But it is clear that these events occurred within a very short space of time. I treat them as one closely related series of offences escalating the culpability of the individual offences. 18 There was evidence from the associate, which I accept, that following the shooting of Mr. Singleton, the offender pointed the gun at Mr. Singleton and attempted to fire it again a number of times, but the weapon did not discharge. The accused said, "I ran out of bullets". When it was indicated that there was another firearm in the car he said, "why didn't you tell me". According to the associate, as the offender and the other occupants of the car were fleeing from the scene of the shooting, the offender said words to the effect, "As long as we are all right, fuck everyone else. Fuck the Aussies, as long as we're all right. If it happened again I would do the same thing, as long as we're all right". 19 Counsel for the offender submitted I should treat these statements as mere gangster's braggadocio and not as serious statements. I regard those statements both as braggadocio and as seriously meant. This is a matter of importance for sentence since the statements accord with the offender's actions being done in a display to his associates of his willingness and readiness to act publicly with savage and lethal force. The statements confirm that the offender was concerned that what he did was for the benefit of himself and his gang of associates. The relevance of this matter will be further apparent when later in these remarks I turn to Exhibit F tendered by the Crown on the issue of the prospects of rehabilitation. 20 The party went to Telopea Street, Bankstown where, with the assistance of a group of other persons, an attempt was made to conceal the perpetrator from justice by damaging the car to make it appear that it had been stolen and by disposing of the pistol in question. The offender and the associate concealed themselves in a South Coast holiday house for some time after the events. 21 There was evidence at the trial establishing that the offender had been in possession of that pistol on earlier occasions and had it on the night in question because of his involvement in activities connected with drugs. His counsel placed reliance on that last matter as a circumstance of mitigation. 22 I do not take into account those matters as aggravating the offender's guilt, but I reject the entirely cynical submission made on his behalf that because he was, on the fatal night, carrying the gun in connection with his illegal activities concerned with drugs, his punishment for using the gun as he did should be mitigated. It was put that he should be seen as less culpable than someone who had premeditated the killings and who obtained the gun for the purpose. There is no point in such a comparison. It disregards the fact that the offender was carrying the gun to inflict violence whenever he wished and that he had immediate resort to its use when expedient, although the occasion in no way warranted such a response. The very spontaneity of his resort to its use shows culpability of a high order. 23 At trial, the offender put his guilt in issue by his plea. He gave no evidence either at trial or on sentence before me. But, the defence case denied the presence of the offender in the car; denied that he was a shooter and raised the suggestion that some other occupant of the car, including the associate who gave evidence in the Crown case, was responsible. Evidence was called from various witnesses that the accused was in fact at home playing cards with his brother and friends; not present when the party in the car stopped on route to the hotel at a café and was not present in the car at any time. 24 His brother, and others, gave evidence of the alibi to which I have referred. It is plain that the jury was satisfied beyond reasonable doubt there was no truth whatsoever in that account. The evidence of that alibi was indeed incredible. The jury were entitled to regard that evidence, the evidence of another witness asserting the offender was not in the car and the evidence he was not at the café, as deliberately untrue. 25 The direct evidence linking the accused with the crime and showing his attempts to avoid justice afterwards came from the associate. 26 A substantial attack was mounted in defence of the charge on the reliability and character of the associate. The case was left to the jury as one in which, for there to be a verdict or any verdict of guilty, the jury had to be satisfied of the evidence of the associate beyond reasonable doubt that the offender had performed the three shootings as that witness had related. The jury were so satisfied. I accept the account that witness gave also. 27 That account establishes that the offender perpetrated an entirely vicious and cold-blooded series of crimes with overwhelming ruthlessness. That ruthlessness accompanied a spontaneous disproportionate response to a situation initially of very limited significance. Rather than consideration being given to detaching those involved from what was a minor altercation by some comparatively innocuous act, the offender chose to use the lethal force he had at his command in the pistol which he carried, to kill those who were in the vicinity and to remove Mr. Singleton's impediment to the car leaving by seriously wounding him. There was no suggestion that either of the deceased had given any provocation or presented any danger or impediment to the accused leaving the scene. The actions that were described by the witness enable me to conclude that what the offender did at that time was a considered, ruthless and vicious series of killings coupled with the wounding to which I have referred. The actions were callous in the extreme. They call for an emphasis on the sentencing elements of personal and general deterrence and community protection. 28 I am satisfied beyond reasonable doubt that following the wounding of Mr. Singleton, the offender would have continued to shoot had he been able. I do not conclude that he would have killed Mr. Singleton or attempted to kill him since the offender was not charged with those offences. But I consider these actions, what he said after the offences and his efforts to avoid detection as giving context to the offences proved against him and as relevant to his dangerousness and the prospects of his rehabilitation or recidivism and as important in deciding what is necessary for the protection of the community. 29 The offences were callous and calculated. They showed a high degree of heinousness and an absence of mitigating features, particularly when one considers the offender's words and actions both immediately and shortly after the event. The offences of murder and that of malicious wounding with intent to cause grievous bodily harm were plainly within the "worst class of case" contemplated by the legislature as punishable by the maximum sentence. 30 Further, he has not only shown no contrition, but before me on sentence volunteered that he disclaimed any. 31 The Crown submits that:- "The offender displayed an appalling indifference to human life and suffering and a cold-blooded callousness. His indication that he would act the same way again in similar circumstances raises concerns about whether he poses a continuing danger to the community." 32 I agree. The Crown further submits:- "If it is established that the prisoner is a risk to the community that may be taken into account in determining what weight may be given to subjective factors which might otherwise call for leniency: Regina v. Veen (No. 2) (1987-88) 164 CLR 465; Regina v. Garforth (NSWCCA, unreported 23 May 1994 at p.5). The Crown says that in this case there are no subjective features that call for leniency. It is submitted that having regard to the prisoner's attitude to the offences that the sentence imposed should have a significant component relating to specific deterrence. Having regard to his assertion that he would act the same way again in similar circumstances, the issue of community protection also needs to be addressed." 33 The subjective features to which this submission refers were related in a report of Terry Kesby-Smith, a psychologist, dated 5 September 2001, tendered without objection. In that report, Mr. Kesby-Smith sets out the information he had been given by the offender as to his own circumstances. 34 Mr. Kesby-Smith concluded:- "The family and developmental history of Mr. Kanaan was described as functional, positive and nurturing. He indicated sharing a close, secure and loving relationship with both parents. He grew to young adulthood with a stable, appropriate and adaptive personality. His outlook on life was positive and he was clear in saying that he had the utmost regard for the rights and property of others. He indicated that he had not had any difficulties with any form of conduct disorder throughout his developmental years. He denied suffering any symptoms consistent with depressed or anxious effect. Like most in his social network, he consumed marihuana but unlike many of his peers he avoided alcohol. … Mr. Kanaan appears to be a young man of well above average intelligence with an equivalent understanding about and insight into his social and personal responsibilities. He has very well developed interpersonal skills. There were not any signs that he suffered from any form of emotional disturbance. His sense of self was very positive and he impressed as being a confident and assured man. He had good insight into his current circumstances, the legal system as it affects him and the implications this process places onto him." 35 Those observations were based entirely upon what Mr. Kanaan had said to the psychologist about himself. 36 To the psychologist, Mr. Kanaan had emphasised he and his family's active practice of their deep Christian faith and their loyalty to their religion. The offender had rejected any involvement with alcohol and asserted that violence had no influence in the family history. He had attended various church schools and claimed to be an attentive and ambitious student who enjoyed his achievement. He had attended a Christian Brothers college and attained a higher school certificate, matriculating with a TER of over 80. He had attended a degree course at university intending to enter the Federal Police until convicted of the assault charge to which I have already referred. Following that charge, he went into the computer business. 37 He has described himself to the psychologist as a model prisoner (notwithstanding the activities shown in Exhibit F, to which I will later refer) claiming that he has never been adversely affected by anxiety, depression, anger, impulse control difficulties, conduct problems or fear. He said:- "I respect myself and I hope this gains respect from others. I treat people the way I want to be treated and they have get (sic) to know me to get an answer to what that is. I am very loyal to my family. I know who I am. I know what I have done and for what I am responsible. I am deeply religious and a strong believer. I pray every day. If I am not that kind of person then I would not be described as a model prisoner. I have a very strong faith; what God wants will happen. I don't know why all this has happened, I know I must trust in God and be patient." 38 All of this was in the context of the offender's denial of the commission of these offences. No reference is made to his involvement in illegal activities connected with drugs, with illegal firearms, with the activities of attempting to conceal the commission of the crime and no reference is made to his association with others involved in illegal activities including while in gaol (Exhibit F). 39 Mr. Kesby-Smith says:- "The self-reported conduct of Mr. Kanaan, whilst a remandee over the past 26 months, has been positive. He impressed me as co-operative with the interview processes." 40 It is on the basis of those matters that Mr. Kesby-Smith expressed the following prognosis:- "The prognosis of Mr. Kanaan is likely to see him to conform to the necessary institutional processes and upon his release to return to his family. It is expected that they will provide him with the necessary emotional, personal and financial support. He is likely to continue his education in some aspects and upon his release to gain appropriate and challenging employment. There does not appear to be any emotional, family or relationship difficulties, which would require counselling intervention. His reported history is generally of appropriate and with purposive behaviour and it is most likely that he will maintain this style of living upon discharge." 41 Mr. Kesby-Smith was not called to give evidence and was not cross-examined. Mr. Kesby-Smith appears to have been accepting of the offender's assertions. Those assertions, in the context of what has been found proved against the offender, indicate that the account given to Mr. Kesby-Smith was so lacking as to be entirely deceptive. I am unable to accept that account as providing circumstances which should attract leniency. In particular, that account displays no evidence of contrition, nor any such matter as would make me consider there was positive hope for rehabilitation. In Regina v. Qutami [2001] NSWCCA 353, the Chief Justice and Smart, AJ. reflected on how little weight, if any, might be given to self-serving, untestable statements given to psychologists in the absence of testable evidence and to conclusions based on such statements. 42 However, the offender's prior circumstances as reported by him illustrate that his upbringing afforded to him a great deal of advantage which should have operated to avoid his involvement in criminality, particularly criminality so serious as this. There is no explanation or reason for his brutal behaviour which might mitigate the sentence. 43 His assertions that he respects the lives and property of others are directly in the teeth of his proved guilt. The omission of this fact is consistent with his denial of his guilt, but the omission of what was put forward by his own counsel of his involvement with firearms and drugs is not so easily explained and is such as to undermine his assertions and the prognosis that for the future one could expect appropriate purposive behaviour. Indeed, the contrast between the behaviour referred to in the report and that proved in evidence at the trial is such that I have been forced to conclude that this document shows a manipulation of the psychologist to present a false picture. I conclude this is consistent with the way in which this offender acted following the offence. Thus there is no suggestion in this material that he is likely to avoid recidivism in the future, particularly when involved with his associates. My views are reinforced by the evidence in Exhibit F of the offender's illegal contacts while in gaol with other prisoners detained for serious crimes. 44 In Regina v. Barac [1999] NSWSC 61, in the context of a submission by the Crown that the life sentence should be imposed, I considered the psychological and personality defects of the prisoner as might go to show dangerousness. In that case I was not satisfied of the circumstances of heinousness or aggravation such as is discussed in Garforth (supra) and Regina v. Twala (CCA, unreported 4 November 1994). I did, however, conclude that the prisoner was dangerous. That conclusion, had I concluded that the level of culpability in the commission of the offence was as extreme as s.61 of the Crimes (Sentencing Procedure) Act 1999 requires, would have meant that the community interest in retribution, punishment, community protection and deterrence could only have been met by the imposition of the life sentence. In that case, I concluded that, with appropriate treatment, there was a prospect that the prisoner's behaviour might be modified and that he was prepared, whilst in custody, to work towards rehabilitation. 45 The present offender does not apparently have those psychological or personality defects. His actions and his subsequent conduct show he too is dangerous. There appears to be nothing which warrants treatment. There is every indication that the offender is not prepared, whilst in custody, to work towards rehabilitation from the commission of these offences (see Exhibit F). This arises not from lacking insight, but from his denial of any criminality. There seems little prospect while things remain thus, of rehabilitation or of avoiding recidivism. I see no prospect of change. 46 I had concluded in the case of Barac (supra) that having regard to how long might be necessary for the processes of rehabilitation and personal deterrence to occur, a minimum term of 20 years should be imposed. In the present case there were submissions from both counsel as to the length of sentence in the event that the life sentence was not to be imposed as to a minimum term in the order of 20 to 30 years. The offender's counsel accepted that that was an appropriate range, but submitted that a minimum term of 20 years was sufficient. 47 In argument I pointed out that there comes a point when the length of the minimum term of a sentence is so high that the discrimination between that and the life sentence can become of limited practical value to an offender. These observations apply less in the case of an accused who is much younger. Questions could arise as to parity of sentence with those who, whilst older, commit crimes of similar culpability. In this case it is not necessary for me to resolve any such problem as I have concluded that these killings, the culpability for which is not to be diminished by the fact that there are two of them, are, in my view, in the worst class of case. They are, in my view, at a level of culpability about which s.61(1) speaks. I have come to that conclusion when evaluating the circumstances of each crime and I further conclude that the offender exhibits such a degree of dangerousness that, had I been in any doubt, that fact would have led me to conclude that the level of culpability required the life sentence, since the community interests referred to in s.61(1) could only have been met through the imposition of that sentence. 48 In Regina v. Petrinovic [1999] NSWSC 1131, I reviewed sentences for offences of murder committed in circumstances of extreme callousness or depravity and discussed the principles applicable to the imposition of the life sentence. In that case I had specific regard to objective culpability much less than was reflected in the acts of this offender, albeit, I there had to have regard to a long history of proved dangerousness arising from the extensive criminal record of the prisoner. I was of the view in Petrinovic (supra) that in the event that I concluded that the circumstances of an individual offender were such as were apposite to the application to them of the requirements of s.61(1), the life sentence was mandatory. 49 That view has not been shared by the Court of Criminal Appeal in Harris (supra). The view was expressed that, even where the other criteria are satisfied, the life sentence remains discretionary. Other than in that respect, I do not understand that case to express any disagreement with what I consider to be the proper application of principle as I expressed it in Petrinovic (supra). However, I understand the decision in Harris (supra) as indicating that, where the requirements of s.61(1) are met, in the proper exercise of discretion the life sentence may be passed, particularly if the circumstances of the offence and its heinousness demand it and those of the offender do not mitigate against it. I consider I should exercise that discretion in this case. 50 As to the circumstances of the offence, the submission that this crime is insufficiently heinous (see Garforth (supra), Twala (supra) and Harris (supra)), in that other crimes of multiple killing, of contract killing or killing after extended torture are of extreme heinousness, fails to deal with the ruthlessness and callous attitude to human life displayed by the offender. 51 As to the circumstances of the offender, the only one which speaks in his favour on analysis, is his youth. But that as with prospects of rehabilitation is not critical (Garforth (supra)). Section 61(1) does not provide a less or more stringent criterion dependent on age. 52 The youth of the offender is, of course, entirely relevant to whether the community should for the rest of the offender's life be protected from him. The legislature has chosen to provide for a life sentence in the absence of any possible consideration for parole in the circumstances where the culpability of the offender's behaviour as judged now appears to require the community to be protected from him for the rest of his days. I share the view of the Court of Criminal Appeal in Harris (supra) that it is much to be regretted there cannot be an opportunity at some time in the future to evaluate the offender's prospects for release in circumstances where an appropriately informed authority can consider the protection of the community looking at what has happened during the years that would have to elapse before such consideration might be given. But looking at the prospects as evidenced now, I am firmly of the view that, having regard to the multiplicity of offences, the two killings, in the context of the wounding of Mr. Singleton, and also the total culpability of the offender for the three offences, the sentence of life imprisonment for each of the murders is the only appropriate sentence. 53 For each of the offences of murder, I sentence the offender to life imprisonment. For the offence of malicious wounding with intent to cause grievous bodily harm, I sentence the offender to imprisonment for 25 years. The sentences are to be concurrent. 54 I take into account that the offender has been in custody referrable to these matters since 17 September 1999. I specify 17 September 1999 as the day on which the sentences are to be taken to have commenced. 55 For the reasons I have given for imposing the life sentences and because of the nature of the malicious wounding offence, I decline to set a non-parole period. ********

Last Modified: 11/06/2001 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.