Yarnton v R; Mouhtaris v R - [2022] NSWCCA 67 - NSWCCA 2021 case summary — Zoe

NSWNSWCCA

Yarnton v R; Mouhtaris v R

[2022] NSWCCA 67

Court of Criminal Appeal (NSW)|2021-10-13|Before: Leeming JA, Fullerton J, Hulme J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2021-10-13

Before

Leeming JA, Fullerton J, Hulme J

Catchwords

[1999] NSWCCA 121 Bugmy v The Queen (1990) 169 CLR 525
[1990] HCA 18 Green v The Queen
Quinn v The Queen (2011) 244 CLR 462
[2011] HCA 49 Lloyd v R [2017] NSWCCA 303 Mill v The Queen (1988) 166 CLR 59

Source

Original judgment source is linked above.

Catchwords

[1999] NSWCCA 121 Bugmy v The Queen (1990) 169 CLR 525[1990] HCA 18 Green v The QueenQuinn v The Queen (2011) 244 CLR 462[2011] HCA 49 Lloyd v R [2017] NSWCCA 303 Mill v The Queen (1988) 166 CLR 59[1988] HCA 70 Mulato v R [2006] NSWCCA 282 Parkinson v R [2021] NSWCCA 98 Postiglione v The Queen (1997) 189 CLR 295[1997] HCA 26 R v HausmanHausman v RR v RostankovskiRostankovski v R [2022] NSWCCA 24 R v Rae [2001] NSWCCA 545 Sabra v R (2015) 257 A Crim R 33

Judgment (33 paragraphs)

[1]

Background facts

At the time of the offence in February 2015, Ms Yarnton, then aged 48, had been married for approximately 23 years. She lived with her husband and their 19 year old son. Both Ms Yarnton and her husband held senior positions with the Department of Corrective Services. Throughout 2014 they had frequent arguments, including concerning their financial affairs. They had agreed to separate.

[2]

Factual findings relevant to the commission of the offence

In September or October 2014, Ms Yarnton spoke to her friend, Ms Osland, about her husband's new relationship, saying that she had "a plan". When Ms Osland asked, "what plan?", Ms Yarnton said words to the effect that, "I have a plan, you don't need to know about it".
From about October 2014, Ms Yarnton began sending false emails from her husband's email account. In the emails, Mr Yarnton appeared to reveal that he had significant gambling debts and owed money to "loan sharks". Mr Yarnton purportedly requested that his wife lend him money to discharge the debt. He promised (again purportedly) he would repay his wife from the proceeds of the sale of their matrimonial home which was settled in February 2015. Ms Yarnton and her husband had agreed that the proceeds from the sale of the house would be used to discharge the mortgage and debts owing on their joint credit cards. It was agreed that any surplus would be divided between them. Each expected to receive approximately $100,000.
On 12 January 2015, Ms Yarnton applied for a $60,000 personal loan with Westpac Bank. The loan was conditionally approved. On 15 January, she attended the Menai branch of the bank and spoke with the Branch Manager. She said that she needed the loan because she was going through a divorce, her husband was being pursued by "loan sharks" and she wanted to discharge that debt on his behalf. She said that threats had been made to her and her family. Ms Yarnton provided the branch manager with a false statutory declaration, purporting to be from her husband. The loan application was approved, but the funds were not immediately available. On learning this, Ms Yarnton became verbally aggressive and said that she had promised the 'loan sharks' that she would provide the money to them that day. The bank then made arrangements to provide the money to her the following day. Ms Yarnton attended the branch on 16 January 2015 and was advised that although the approved amount had been reduced to $25,000, $20,000 was immediately available in cash.
On 27 January 2015, Ms Yarnton again attended upon the Westpac Bank at Menai seeking additional loan funds. On 28 January 2015, she was advised that her second loan application had been refused.

[3]

The events of 31 January 2015

Between December 2014 and January 2015, Ms Yarnton spoke to her husband about the prospect of him accompanying her to a dinner with their close friends, Craig and Christine Osland. Mr Yarnton was reluctant to attend but on 28 January 2015, a dinner was arranged at Merrylands Bowling Club for the two couples for the following Saturday, 31 January 2015. The couples described that final gathering as the "last supper".
At 11:17am on 31 January 2015, Ms Yarnton sent Ms Hayes a text message: "Fuck I hope you find someone who has the right tools to fix our friend's car, xxx". [9]
At 10:44pm on the night of the dinner, Mr Mouhtaris acquired two 8.5kg "Swap'n'Go" gas bottles from a petrol station on the Hume highway at Bass Hill. In CCTV footage he is seen leaving the service station. The same footage also recorded a silver car (Mr Houda's vehicle) turning left into a street adjacent to the service station at 10:42pm and then turning back onto the Hume Highway a short time later at 10:46pm.
At approximately 11:30pm, the diners left the Merrylands Bowling Club, by which time Mr Yarnton was drowsy and intoxicated. He had consumed approximately 8 to 12 beers throughout the afternoon and evening. Ms Yarnton did not consume any alcohol. The group travelled to the Oslands' house a short distance away. Ms Yarnton drove her husband in a Nissan Navara.
At about 11:45pm, Ms Yarnton and her husband left the Oslands' home. Mr Yarnton initially got into the rear passenger side of the Nissan Navara and lay across the back seats but then got out and sat in the front passenger seat where he remained with the seat fully reclined. He fell asleep within minutes. Ms Yarnton then drove from Merrylands to a location at Picnic Point.
At 11:49pm, she sent a "thumbs up" emoji to Ms Hayes via Facebook. At 11:59pm Ms Yarnton reported to Ms Hayes, "Now he is abusing me he is in the front".
Seventeen minutes later at 12:16am on 1 February 2015, Ms Yarnton sent a message to Mr Houda via Facebook: "Hey". (Her husband gave evidence that he saw this message after the foiled attempt on his life and it was accompanied by a map or a grid.)
Between 12:15am and 1:21am, Ms Yarnton made 19 calls (or attempted calls) to Ms Hayes. At 1:03am, after a call two minutes earlier of 27 seconds duration, Ms Yarnton sent a Facebook message to Ms Hayes: "Tell. Him now". Ms Hayes responded: "Ok". At 1:03am, Ms Hayes, used a different telephone number to call Mr Mouhtaris. They spoke for 41 seconds. At 1:10am, Mr Mouhtaris made two phone calls to Ms Hayes of five seconds and eight seconds' duration, respectively. [10]
The sentencing judge found that although the content of these calls and texts is unknown, given their temporal proximity to the Facebook messages set out below, she was satisfied that the telephone contact between Ms Hayes and Mr Mouhtaris in that timeframe concerned the arrangements to kill Mr Yarnton.
Between 12:36am and 1:03am, Ms Yarnton and Ms Hayes exchanged the following Facebook messages: Time Sender Text 12:36am Yarnton Hey let me know if ur calling in 12:48am Hayes Hey my internet went off I had a nanna nap and my cat sat on my face…. Lol I'll see you tomorrow if his being aggressive 12:51am Yarnton Hey where r they 12:51am Yarnton ???? 12:52am Hayes Uhm work I'm sure why is everything ok 12:53am Yarnton No noone is here 12:54am Hayes I've ran out of credit one minute 12:59am Hayes My internet is being a poo has he stop being aggressive

[5]

Just before 1:20am, Mr Yarnton woke up alone in the passenger seat of the Nissan Navara to the sound of a hissing gas bottle. There was an LPG gas bottle positioned on the back passenger seat of the vehicle, about 50 to 60 centimetres from his head. He leaned over and turned it off. All the windows were down. It was very dark. The keys were not in the ignition and the hazard lights were off. He got out of the vehicle. He could smell fuel and noticed a second LPG gas bottle positioned beside the vehicle, underneath the fuel tank. The door of the fuel tank, which required a key, was open. Spilt fuel was on the roadway around the car.
He then noticed a vehicle which the sentencing judge was satisfied was Mr Houda's car on the same side of the road as the Nissan Navara but facing down the hill. Within seconds, that car drove away in the opposite direction.
At 1:19am, Mr Yarnton called his wife. She said that she had "shit herself and she was in the bush cleaning herself up". Her husband told her she needed to return to the vehicle. Ms Yarnton told him she would, "be out shortly". (A line search of the surrounding area by police did not locate any serviettes or faeces.)
Between 1:24am and 1:36am there were multiple Facebook messages exchanged between Ms Yarnton and Ms Hayes. At 1:24am Ms Yarnton sent a Facebook message to Ms Hayes: "Yet". At 1:27am there was a missed Facebook call from Ms Hayes to Ms Yarnton. At 1:30am Ms Yarnton made a Facebook call to Ms Hayes. Ms Hayes made two Facebook calls to Ms Yarnton at 1:34am and 1:36am.
At 1:36am, approximately 17 minutes after Mr Yarnton's first phone conversation with his wife, he called triple-0, at which time he observed her walking up the hill towards him from a distance of about 100 metres away.
Shortly before 2:00am, police arrived in response to the triple-0 call. Police observed liquid on and around the vehicle and the smell of fuel. A pink cigarette lighter and black glove were located on the same side of the roadway as the Nissan Navara, a short distance from the car.
A tape lift was taken from the glove. The DNA recovered was a mixture from at least three individuals. Mr Houda and Mr Mouhtaris could not be excluded as major contributors to the mixture. Two tape lifts were also taken from the cigarette lighter. The DNA recovered was a partial profile from an unknown male.
On the bitumen surface behind the Nissan Navara on the driver's side, there was an area in which petrol had pooled after draining from the vehicle. The two 8.5kg LPG gas bottles were located nearby. One gas bottle was located in the bush on the same side of the road as the Nissan Navara; the other was located on the opposite side of the road.
At approximately 1.50am, a vehicle fire on Karimbla Road, Caringbah, was reported to police approximately five to seven minutes walking distance from the apartment complex at Caringbah, where Ms Hayes, Mr Houda and Mr Mouhtaris resided. Police attended and located Mr Houda's 1995 silver Subaru Impreza. The interior of the vehicle was destroyed by fire. An ignitable liquid sample taken from the boot tested positive for petrol. Mr Houda made a statement to police on 1 February 2015 in which he claimed that his car had been stolen.

[6]

The offenders are arrested

In the early hours of 1 February 2015, Ms Yarnton was arrested and conveyed to Bankstown Police Station where she was interviewed. She denied any involvement in the offence. She told police she stopped the Nissan Nevara at Picnic Point because she urgently needed to defecate. In a further interview conducted on 2 February 2015, she told police of a conversation she had with Mr Houda at the apartment in which he resided with Ms Hayes. She told police Mr Houda had offered to kneecap, "knock", and smack around her husband. She said she eventually agreed to let Mr Houda (and possibly his cousin Mr Mouhtaris) smack or clip her husband in the head. She told police she was later told by Mr Houda that he and his cousin were going to see her husband later that night and that she begged them not to.
She told police that on the night of the offence, she realised Mr Houda was tailgating her on Henry Lawson Drive and that she sped up and pulled into a side street to lose him. She told police that she spoke with Ms Hayes while in the bushes at Picnic Point and protested at the prospect of her husband being harmed. She said Ms Hayes told her, "It's too late, they've gassed the car."
On 2 February 2015, both Ms Hayes and Mr Houda attended Miranda Police and were arrested. Mr Houda declined to participate in an electronically recorded interview. He consented to a sample of his DNA being taken.
Ms Hayes participated in a recorded interview in which she told police that she knew nothing about the events of the early morning of 1 February 2015 and that she had not used the mobile phone which the police suspected had been used by her to convey instructions to Mr Mouhtaris. She said that the last time she was in contact with Ms Yarnton was on 31 January 2015 when Ms Yarnton told her she was going out for dinner. She said Ms Yarnton phoned her, said that her husband was being abusive and that she would call back but never did. She said Ms Yarnton had been threatening to "do this and that" to her husband which Ms Hayes described as "crazy shit". She said she had no knowledge of, or involvement in, any attempt to murder him. She said she first became aware of that allegation when Ms Yarnton's son accused her of being involved in the attempt to kill his father.
On 5 February 2015, Ms Hayes provided a notebook statement in which she said to a senior assistant superintendent at Silverwater Correctional Centre, and that she met with Ms Yarnton at McDonald's at Caringbah on 29 January 2015 at Ms Yarnton's request. Ms Yarnton claimed that she was being abused by her husband and asked her, "if [she] would 'knock' her husband", which Ms Hayes understood to mean to have him killed. Ms Hayes said she laughed and Ms Yarnton then said, "This isn't a fucking joke. I am not fucking around". Ms Yarnton then drove Ms Hayes home and when they arrived, Ms Yarnton opened the boot of the car and showed her a bag containing $20,000 cash. Ms Yarnton asked her again whether she would kill her husband. Ms Yarnton then asked Ms Hayes to stay in contact with her on Saturday night (31 January) by Facebook. Ms Hayes said that Ms Yarnton gave her $2,000 to "keep [her] mouth shut about the $20,000". Ms Hayes admitted she took the money, but denied she ever agreed to murder Mr Yarnton. [12]
Mr Mouhtaris was arrested on 5 July 2018. He declined to participate in a recorded interview.

[13]

The objective seriousness of Ms Yarnton's offending

The sentencing judge assessed the objective seriousness of Ms Yarnton's offending as between the mid and high-range for an offence laid contrary to s 30 of the Crimes Act, the seriousness of which is reflected in the fact that it involves an intention to kill, and which attracted a maximum penalty of 25 years for which a standard non-parole period of 10 years is provided.
That assessment took into account that although Ms Yarnton planned to murder her husband from as early as October 2014, there was no evidence of any co-ordinated planning by any of her co-offenders until, at the earliest, 29 January 2015 when she met Ms Hayes in Caringbah, and the following day when she sent the message to Ms Hayes about finding someone to "fix our friend's car". The sentencing judge was satisfied that was a coded reference to the plan to set fire to a car in which her husband would be sleeping.
The sentencing judge was also satisfied that Ms Yarnton borrowed funds from Westpac Bank under a false pretence in order to pay her co-offenders for assisting her to murder her husband. The sentencing judge found that although Ms Yarnton recruited Ms Hayes and Mr Houda, it was not clear on the evidence who recruited Mr Mouhtaris, or when that occurred prior to him attending at the remote location with the recently acquired gas bottles.
The sentencing judge treated Ms Yarnton's offending as aggravated by the fact that it was a domestic violence offence. [13]
The sentencing judge assessed Ms Yarnton's moral culpability as higher than that of her co-offenders. She was satisfied that Ms Yarnton was motivated to exact retribution for the breakdown of her marriage and to punish her husband and his partner. She was also satisfied that the only explanation for Ms Yarnton sending the jumping dog emoji to Ms Hayes (after confirming she had opened all windows of the car and the petrol tank) was Ms Yarnton's "glee or excitement at the thought that her husband was imminently to be burnt alive".

[16]

The impact of delay

At the sentencing hearing the Crown conceded that the delay in the resolution of the matters at trial should be taken into account in the sentence of all four offenders. The joint trial was vacated on three separate occasions (one on Ms Hayes' application) before the jury returned verdicts of guilty in a fourth trial in July 2019, that is, over four years after the arrest of Ms Yarnton, Mr Houda and Ms Hayes and 12 months after Mr Mouhtaris was arrested. Although her Honour noted, correctly, that delay of itself is not a mitigatory factor, in combination with other factors it could be taken into account in mitigation.
The sentencing judge was satisfied that Ms Yarnton experienced that delay in a way that exacerbated her compromised mental health and contributed to her state of anxiety to the extent that she was placed on suicide watch. As a remand prisoner, Ms Yarnton's access to programs in custody was also restricted. Ultimately, her Honour was satisfied that delay entitled Ms Yarnton to an added element of leniency. [14]
The sentencing judge dealt with the issue of delay when sentencing Ms Hayes, accepting that the delay also exacerbated Ms Hayes' anxiety (a factor which contributed to a finding of special circumstances). She also noted that the delay also allowed for Ms Hayes to pursue concerted efforts towards her rehabilitation by completing courses and undertaking voluntary work both in custody and whilst on conditional liberty. The sentencing judge noted that Ms Hayes refrained from using prohibited drugs in the years prior to her trial. Despite these findings, her Honour ultimately only took delay into account as contributing to a finding of special circumstances. It is not clear why, consistent with the approach to the issue of delay when sentencing Ms Yarnton, delay was not also taken into account in the appointment of Ms Hayes' head sentence.
Delay also contributed to her Honour's finding of special circumstances when sentencing Mr Houda. Her Honour accepted that the evidence established that Mr Houda had limited access to therapeutic programs and work whilst on remand and that his various health conditions were exacerbated by the uncertainty of what her Honour describes as "his legal status".
Given the date of Mr Mouhtaris' arrest, the sentencing judge was not satisfied delay was a relevant factor in his sentence.

[17]

Ms Yarnton's subjective circumstances

Ms Yarnton was 48 years old at the time of the offence and 53 when she was sentenced.
The Crown tendered a Victim Impact Statement from her husband (which her Honour took into account but which was not relied upon as evidence of substantial harm under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act), a Justice Health report from Dr Elliott, psychiatrist, and a Sentencing Assessment Report.
Ms Yarnton did not give evidence on sentence. Two reports from Dr Olav Nielssen, psychiatrist, letters of support from her son, her mother and a friend, two psychological reports from Mr Lloyd, clinical psychologist, professional certificates, references arising from her employment as a Correctives Services officer and media articles and publicity were tendered on her behalf.
Mr Lloyd had been treating Ms Yarnton since 2014. He reported that in 1997 she was diagnosed with severe depression and anxiety, including a panic disorder, and admitted for inpatient treatment for one week where she was prescribed medication and received psychiatric treatment. She was admitted again in 1999. Mr Lloyd diagnosed Ms Yarnton with a major depressive disorder, post-traumatic stress disorder and borderline personality disorder.
Ms Yarnton reported to Dr Nielssen that she had an unhappy childhood in which at one stage she and her brother were taken into care due to her father's alcoholism and abuse. After returning to live with her parents, she was sexually abused by her father's friend from the age of 10 to 15. She also reported abuse in her relationship with her husband (which he denied in evidence) and exposure to trauma in her career as a prison officer. Dr Nielssen diagnosed her as suffering from a "pre-existing" depressive illness, preferring that diagnosis to diagnoses of post-traumatic stress disorder and borderline personality disorder.
Dr Elliott also gave brief evidence in which he opined that at the time of his assessment in 2019 Ms Yarnton did not present with a severe or melancholic depression but had suffered significant depressive symptoms in the past.

[20]

The sentencing judge's consideration of Mr Mouhtaris' subjective circumstances

The sentencing judge also applied Bugmy principles in sentencing Mr Mouhtaris. She was satisfied that he suffered deprivation and disruption in his formative years. She was not satisfied, however, that the influence of those factors reduced his moral culpability to a significant extent. There was insufficient evidence to establish that Mr Mouhtaris' motive for committing the offence was financial.
The sentencing judge found that Mr Mouhtaris' youth advanced his prospects of rehabilitation and the emphasis given to general deterrence was also tempered for that reason.
The sentencing judge was satisfied Mr Mouhtaris' minimal criminal history did not detract from his prior good character which was taken into account in his favour in support of her Honour's finding he had good prospects for rehabilitation and in support of a finding of special circumstances. She also treated his prior good character as entitled to less weight than it might have attracted were the offence not as serious as an attempted murder.
Mr Mouhtaris' mental health did result in some lessening of the emphasis to be given to specific deterrence, with the onset of an adjustment disorder with anxiety presenting on his realisation of the gravity of being charged with attempted murder. Her Honour was also satisfied his anxiety contributed to his experience of custody being more onerous, which also contributed to the finding of special circumstances.
Mr Mouhtaris maintained his denial of the offence. Accordingly, there was no evidence of remorse or contrition.
The sentencing judge found Mr Mouhtaris had some positive prospects of rehabilitation, but they were tempered by a lack of insight into his offending. He was assessed as having a medium to low risk of reoffending in the Sentencing Assessment Report.
Special circumstances were found on the following bases: his youth, his experience of custody (noting this was his first custodial sentence) and the need for supervised rehabilitation in the community. The sentencing judge noted the Crown's concession that the impact of Covid-19 on custodial arrangements in the months prior to the sentence would likely exacerbate Mr Mouhtaris' experience of custody as a serving prisoner.

[22]

The sentencing judge's consideration of Mr Houda' subjective circumstances

Her Honour noted that Mr Houda committed serious offences as a juvenile. The relevance of his juvenile record assisted the sentencing judge to assess the issues he confronted in childhood and the impact of various mental health conditions. The sentencing judge described Mr Houda's criminal history as an adult as less serious, including in 2012 a 9-month sentence with a non-parole period of three months for disposing of a motor vehicle part. He was also placed on two good behaviour bonds for resisting police officers in the execution of duty and driving an unregistered, uninsured motor vehicle.
Upon entering custody in February 2015, he reported high levels of anxiety, paranoid thoughts and hearing voices. He was later treated for schizophrenia and depression at Long Bay hospital where he was prescribed antipsychotic and antidepressant medication.
In Dr Furst's opinion, Mr Houda was likely in the prodromal or early phase of the schizophrenic illness at the time of the offence with a diagnosis of mild intellectual disability or a borderline intellectual disability contributing to his compromised decision-making and poor judgement in agreeing to participate in a joint criminal enterprise to murder.
The sentencing judge found that while there was a strong inference that the promise of financial reward was what motivated Mr Houda to participate in the offence, she was not satisfied of that fact beyond reasonable doubt such as to aggravate his offending.
The fact that Mr Houda was on conditional liberty at the time of the offence (in the form of two good behaviour bonds and bail) aggravated his offending.
The sentencing judge was satisfied Mr Houda's history of mental ill health was causally connected with his offending by contributing to poor decision-making and compromised judgment, a finding which operated to reduce his moral culpability. She was also satisfied that he was an unsuitable vehicle for full weight to be given to general deterrence for that reason. The emphasis to be given to specific deterrence was also tempered. Finally, her Honour was satisfied Mr Houda's mental health would make his experience of custody more onerous, which contributed to a finding of special circumstances.
Mr Houda's criminal record denied him any leniency on account of good character. The sentencing judge treated his involvement in the joint criminal enterprise to murder as a significant escalation in his criminality.
Although the sentencing judge found that Mr Houda's relative youth contributed favourably to his prospects of rehabilitation, those prospects were treated by the sentencing judge as "guarded", there being no evidence he had any insight into his offending. He had also incurred numerous drug-related infringements in custody. He was found in the Sentencing Assessment Report to have a medium to high risk of reoffending.
The sentencing judge was satisfied Ms Hayes' two young children (the younger of whom was also Mr Houda's son) would experience hardship from Mr Houda's incarceration, resulting in some reduction to the head sentence.

[23]

Ms Hayes' subjective circumstances

Ms Hayes was 23 years old at the time of the offence and 28 at the time of sentence. The sentencing judge found that her relative youth at the time of the offence contributed favourably to her prospects of rehabilitation which would be taken into account, in the context of a range of factors, in mitigation of sentence.
A report from Dr Ellis, forensic psychiatrist, was tendered in which he outlined what the sentencing judge described as Ms Hayes' troubled background. Ms Hayes' mother was using methadone whilst she was pregnant. She told her daughter that she had been sexually abused as an infant. Ms Hayes also reported she was sexually abused at age five by an associate of her father who was frequently in prison for drug offences. Ms Hayes was diagnosed with attention deficit hyperactivity disorder when she was aged four. She was prescribed medication, including dexamphetamine.
Ms Hayes had a disrupted primary school education due to behavioural problems resulting, ultimately, in her expulsion. She was also expelled from high school after which she attended what was described as a special school. She was detained in juvenile detention on multiple occasions.
She began smoking tobacco at age 12 and drank alcohol between the ages of 12 and 23, on occasions drinking up to two bottles of spirits and experiencing multiple blackouts. She was also a polysubstance abuser from the age of 12. Between the ages of 15 and 16 she commenced using methamphetamines. She also developed a dependence on benzodiazepine. At age 16 she overdosed and was treated in hospital. At age 17 she was in a motor vehicle accident suffering back and head injuries, including a lumbar spinal disc extrusion from which she continued to suffer chronic pain.
Although Ms Hayes did not give evidence on sentence, the history she gave Dr Ellis was amply corroborated by other evidence.
Dr Ellis diagnosed a significant personality disorder with mixed borderline and antisocial traits together with substance abuse issues. He also reported that Ms Hayes was suffering significant symptoms of anxiety personality disorder present in the context of an early developmental history characterised by abuse and trauma.

[24]

The sentencing judge's consideration of Ms Hayes' subjective circumstances

The sentencing judge was satisfied Ms Hayes was motivated to participate in the joint criminal enterprise to kill Ms Yarnton's husband largely due to her misguided belief that she was helping Ms Yarnton and her misplaced trust in her older friend. Although the sentencing judge found evidence of a financial motive, it was not the dominant motivation and did not operate to aggravate her offending.
The sentencing judge was satisfied, applying Bugmy principles, Ms Hayes' moral culpability for her role in the joint criminal enterprise was significantly reduced. She was also satisfied that the dynamic of the nature of the relationship between Ms Hayes and Ms Yarnton was the context in which Ms Hayes was easily manipulated by Ms Yarnton to participate in the joint criminal enterprise, a vulnerability which was informed by Ms Yarnton's deprived and traumatic background.
Her Honour was not persuaded there was any causal link between Ms Hayes' mental health and her offending. Rather, it was the interplay of what the sentencing judge described as "Bugmy issues" which dominated in the assessment of her moral culpability. The sentencing judge did find Ms Hayes' mental health rendered her a less suitable vehicle for general deterrence. It also tempered the weight to be given to specific deterrence.
Although Ms Hayes was not entitled to any leniency for prior good character, the sentencing judge considered her criminal history (both as a juvenile, including periods of supervision and juvenile detention, and as an adult) should also be understood in the context of her deprived childhood. She had not been sentenced to full-time custody as an adult.
Ms Hayes was assessed as having reasonable prospects of rehabilitation with a medium risk of reoffending. The sentencing judge noted that treatment recommendations had been made by various assessors and that Ms Hayes showed a commitment towards her rehabilitation.
A finding of hardship to third parties was made in respect of Ms Hayes' two sons, who were aged nine and one at the time of sentencing. They were being cared for by her parents. This finding contributed to a reduction of the length of her sentence and that of her partner, Mr Houda, although to a greater degree in Ms Hayes' case.
The sentencing judge was satisfied Ms Hayes' experience of custody would be more onerous not only because of her mental health but also due to limited access to counselling, education courses and treatment for her panic attacks and anxiety, being separated from her children, which she experienced as recurrent trauma in the context of her background. The evidence also established that the impact of the Covid-19 pandemic and the suspension of personal visits, including from Ms Hayes' children would exacerbate her experience of incarceration. The sentencing judge found that those factors contributed to finding special circumstances.
The sentencing judge was not satisfied Ms Hayes' bail conditions amounted to quasi-custody. They were, however, taken into account together with the impact of delay in a finding of special circumstances.

[26]

Submissions on behalf of Ms Yarnton's (parity) (Ground 1)

Counsel for Ms Yarnton focused his submissions on the disparity between her head sentence of 16 years and 6 months as compared with the head sentences imposed on her co-offenders of 11 years and 6 months (Mr Mouhtaris and Mr Houda) and 6 years and 6 months (Ms Hayes). Counsel accepted that the differences in the ratio between the head sentences and non-parole periods of all offenders was justified given the differing ways their subjective circumstances informed a finding of special circumstances made in each case.
In counsel's submission, the differentiation of ten years between the head sentence imposed on Ms Yarnton and Ms Hayes, and the differentiation of five years between Ms Yarnton's sentence and the sentences imposed on each of Mr Mouhtaris and Mr Houda, was not open to the sentencing judge in the exercise of her discretion, notwithstanding her Honour's finding (which was not challenged on the appeal) that Ms Yarnton was the architect of the plan to murder her husband and notwithstanding the allied finding (also not challenged on the appeal) that she recruited each of her co-offenders to perform different roles in the joint criminal enterprise to murder her husband.
Counsel further submitted that despite the sentencing judge appointing Ms Yarnton's offending in the mid to high range of objective seriousness compared with mid-range offending for each of Mr Houda and the applicant Mr Mouhtaris, and below the mid-range for Ms Hayes (another series of unchallenged findings), the appointment of mid to high range objective seriousness was merely one factor to be taken into account by the sentencing judge in arriving at a just and proportionate sentence for Ms Yarnton relative to her co-offenders. Counsel submitted that objective seriousness, although deserving of very considerable weight in the ultimate sentencing exercise, could not account for the marked disparity in the sentences ultimately imposed on each of the offenders, in particular where, as he submitted, Ms Yarnton's subjective case was in significant respects of greater weight than the subjective cases of each of Mr Mouhtaris and Mr Houda, including that unlike each of Ms Hayes and Mr Houda, Ms Yarnton had no criminal antecedents and was otherwise a person of good character.
Counsel also emphasised that although the sentencing judge was not satisfied that the evidence relating to Ms Yarnton's mental health operated to ameliorate her moral culpability, she was satisfied that body of evidence reduced the weight that would otherwise be given to general and specific deterrence. Counsel emphasised the sentencing judge's finding that Bugmy principles ameliorated Ms Yarnton's moral culpability.
On that issue the sentencing judge said: That exposure to trauma does render the moral culpability of Ms Yarnton less than the culpability of an offender whose childhood was not scarred in that way, as such experiences can compromise an offender's capacity to mature and to respond to emotionally traumatic situations or situations perceived in that way.

[27]

The Crown's submissions in response to Ms Yarnton's (parity) Ground 1

The Crown submitted that her Honour's finding that Bugmy considerations were relevant in the assessment of Ms Yarnton's moral culpability needs to be contrasted with a related finding that Ms Yarnton's moral culpability was rendered "more serious" by having sent the jumping dog emoji communicating, by her choice of that image, her excitement or glee at the prospect that her husband would soon be burnt alive.
In essence, the Crown submitted the sentencing judge's assessment of Ms Yarnton's moral culpability in designing and then arranging for others to play their role in executing the plan to murder her husband, and her expression of unqualified elation at her husband's pending death in a fire in a remote location where emergency services were unlikely to attend before he was incinerated, was appropriately reflected in a head sentence of 16 years and 6 months. The Crown also submitted that, relative to the head sentences of each of her co-offenders for the roles they played as participants in a joint criminal enterprise, no parity error was revealed in Ms Yarnton's head sentence relative to the head sentences imposed on those she recruited. The Crown emphasised that despite Ms Yarnton's troubled upbringing providing some insights into why, as a person of otherwise good character she was involved in a joint criminal enterprise to murder, her moral culpability remained of the highest order relative to her co-offenders.
By way of contrast, the Crown submitted the considerable weight the sentencing judge afforded Bugmy considerations in sentencing Ms Hayes, together with the fact that she was satisfied that Ms Hayes' moral culpability needed to be understood in the context of a wholly misguided belief that she was helping Ms Yarnton to escape from an abusive marriage, more than sufficiently justified the differentiation of ten years in their head sentences.
Insofar as concerns Mr Houda and Mr Mouhtaris, in the Crown's submission the differentiation of five years between their head sentences and Ms Yarnton's head sentence is also to be understood referable to their objectively less serious offending, including the critical finding that her Honour was not satisfied, to the criminal standard, that their involvement predated the date of the offence. In addition, both co-offenders had an array of subjective circumstances that warranted leniency; in Mr Houda's case, a causal link between his mental ill-health and his offending and in Mr Mouhtaris' case Bugmy principles operated to reduce his moral culpability.

[28]

Submissions on behalf of Mr Mouhtaris' (parity) Ground 2

Counsel for Mr Mouhtaris submitted that there was a marked and unjustified disparity between his sentence and the sentence imposed upon Ms Hayes. In his submission, it was not open to the sentencing judge to find Ms Hayes' offending, viewed objectively, as less serious than any of her co-offenders. He submitted that a proper assessment of the objective seriousness of all participants in the joint criminal enterprise should have appointed Mr Mouhtaris' offending as significantly less serious than Ms Hayes' offending.
In support of that submission (a submission also advanced in support of ground 1(a) of his appeal), counsel proposed that in a hierarchical sense Ms Hayes was more appropriately positioned as Ms Yarnton's "lieutenant" or "second in charge" and that her Honour should have found, as a fact, that in that capacity Ms Hayes participated with Ms Yarnton in planning to kill Mr Yarnton well prior to 31 January 2015. This was said to be in contrast to there being no evidence to establish, directly or by inference, that Mr Mouhtaris' involvement predated 31 January 2015, the date counsel submitted must have been appointed by Ms Yarnton (and Ms Hayes) to commit the murder without reference to him.
Counsel for Mr Mouhtaris also submitted that not only were Ms Hayes' subjective circumstances no stronger than Mr Mouhtaris' subjective case, Ms Hayes had a criminal history which disentitled her to any leniency, in contrast to Mr Mouhtaris who had the advantage of a finding of good character which should have afforded him leniency in the ultimate appointment of his head sentence.
Counsel also submitted that the imposition of the identical sentences for Mr Mouhtaris and Mr Houda is demonstrable of an error in the application of parity principles. Counsel submitted that the critical role Mr Houda played by making his car available for the collection and transport of the gas bottles to the crime scene allowed for an inference to be drawn that he was more directly involved in the planning for and the preparations to ignite a fire that would engulf the car in which Mr Yarnton was sleeping. This was in direct contrast to an absence of any evidence capable of establishing that Mr Mouhtaris played any role in the joint criminal enterprise other than as an assistant to Mr Houda, recruited on the day of the offence to accompany him to acquire the gas bottles and assist in this transportation to the crime scene.
Counsel also submitted that there were material differences in the relative subjective cases of his client and Mr Houda, not least that Mr Mouhtaris had the benefit of a finding of prior good character and that at the time of the offending he was a young man aged 19.

[30]

Consideration of the parity ground advanced by both applicants (Ground 1 - Ms Yarnton; Ground 2 - Mr Mouhtaris)

It cannot be doubted that the sentencing judge was in the best possible position to consider the interrelationship between the objective criminality in the proven conduct of each of the participants in the joint criminal enterprise to murder and the interrelationship between the subjective circumstances of each of them in a meaningful and informed way. She had presided over a lengthy trial and a sentencing hearing which extended over multiple sitting days.
Informed by that governing observation, I accept that the degree of disparity between Ms Yarnton's head sentence and the head sentences of her co-offenders is marked. I am not persuaded however that the disparity was unjustified, in the sense that it was not open to the sentencing judge, in the exercise of her sentencing discretion, to structure the sentences by imposing the most severe sentence on Ms Yarnton and the least severe sentence on Ms Hayes with the sentences imposed on Mr Mouhtaris and Mr Houda positioned at a mid-way point between the two.
Ms Yarnton's plan to murder her husband, which the sentencing judge found was extant for some months before 1 February 2015, was motivated by revenge and recrimination at the demise of her marriage.
The sentencing judge also found that the plan to murder her husband included Ms Yarnton's planning for the "last supper" where alcohol would be consumed by her husband whilst she remained sober. As is clear from the evidence and her Honour's factual findings, Ms Yarnton also planned to be some distance from where she parked the Nissan Navara before the planned arrival of two of her co-offenders who she expected would place the gas bottles in position in and around the vehicle to allow for the fuel in the petrol tank and the spilt fuel to combust when ignited.
On that analysis, Ms Yarnton's level of culpability in the joint criminal enterprise in which she was the prime motivator is markedly different from and far more serious than the criminal culpability of any of her co-offenders.
In contrast, the sentencing judge was not persuaded there was sufficient evidence to enable her to find that either Mr Mouhtaris or Mr Houda were motivated by financial reward such as might have aggravated their moral culpability. Further, although the sentencing judge found there was evidence that Ms Hayes' motivations were financial, she was not satisfied they operated to aggravate her offending when her predominant motive was the misguided belief that she was helping Ms Yarnton escape from an abusive marriage and where, because she was vulnerable to Ms Yarnton's influence, she was easily manipulated by an older woman who she apparently looked up to to assist her.
Ms Yarnton's subjective circumstances, each of which were dealt with separately by the sentencing judge, were collectively worthy of weight in the sentencing exercise. I am not persuaded however that her head sentence, relative to the sentences imposed on her co-offenders, failed to adequately reflect that fact. Importantly, the sentencing judge expressly found Ms Yarnton's criminal culpability was not significantly tempered by the interrelationship of Bugmy considerations and her mental health. Although those factors operated to temper the need for her sentence to reflect general and specific deterrence to some degree, the sentencing judge was properly concerned to ensure they did not overwhelm the need for the sentence to reflect both sentencing principles. This was in direct contrast to the sentencing judge's finding that Bugmy considerations informed her assessment of Ms Hayes' moral culpability to a significant degree. As importantly, although the sentencing judge found that Bugmy considerations also reduced Mr Mouhtaris' moral culpability, they did not operate to the same degree as is Ms Hayes' case, where she had an extensive history of exposure to maladaptive family and social circumstances, disrupting her personal development for many years into early adulthood.
I would reject the first ground of appeal of Ms Yarnton's application for leave to appeal her sentence.
I have come to the view that Mr Mouhtaris has failed to establish that the disparity between his sentence and the sentence imposed on Ms Hayes was not open to the sentencing judge in the exercise of her discretion. In my view, it was open to the sentencing judge to assess Ms Hayes' moral culpability as significantly reduced relative to the mid-range offending she attributed to Mr Mouhtaris, despite the impact of Bugmy considerations reducing Mr Mouhtaris' moral culpability to some degree.
However, I am persuaded that Mr Mouhtaris has made good the claim to having a legitimate sense of grievance when his sentence is compared to the sentence imposed on Mr Houda. It is not any differentiation in the roles they performed as participants in the joint criminal enterprise which has persuaded me that his parity ground is made out; rather, it is the combined force of his subjective circumstances which, compared to Mr Houda's different and less compelling subjective circumstances, should have operated in mitigation of his sentence.
In particular, in my view, it was not open to the sentencing judge to treat Mr Mouhtaris' age at the time of the offending as only "count[ing] favourably towards his prospects of rehabilitation and modestly tempers (sic) the emphasis to be given to general deterrence", or that his youth and his prior good character principally supported "positive prospects of rehabilitation" accounted for in a finding of special circumstances. Although the sentencing judge went on to acknowledge Mr Mouhtaris' prior good character was a statutory feature of mitigation, [18] she diminished its weight because of the seriousness of the offence and that it involved "a degree of premeditation" (although, I interpolate, not any premeditation on his part). I accept that while the seriousness of the offence might have diminished the weight of Mr Mouhtaris' good character, what remained to be considered was the significance of Mr Mouhtaris' young age and the fact that "the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their [offending]". [19] In this case, that fact, coupled with Mr Mouhtaris' prior good character (not diminished by relatively few encounters with the authorities before the offence and none between that date and the date of his arrest), and a factor which, of itself, operated in mitigation of sentence were overlooked by the sentencing judge. [20]
Mr Houda who was aged 22 at the time of the offending and whose criminal record not only denied him any leniency but whose offending was viewed by the sentencing judge as a significant escalation in his criminality, did not have available to him either youth or good character as mitigating factors in the appointment of his head sentence. Her Honour also treated Mr Houda's offending while subject to conditional liberty as a feature of statutory aggravation.
Further, and despite the sentencing judge finding a causal link between Mr Houda's offending and his compromised mental health which reduced his moral culpability to some degree (a factor which was not found established on the probabilities in Mr Mouhtaris' case), other factors in Mr Mouhtaris' case, in particular the impact of Bugmy considerations, also operated in reduction of his moral culpability.
In the result, I have concluded that the evidence before the sentencing judge concerning Mr Mouhtaris' subjective circumstances, viewed collectively, was more compelling than the evidence in Mr Houda's subjective case. I have come to the view that despite individual features of Mr Houda's subjective circumstances being deserving of weight.
On that analysis, I have concluded that it was not open to her Honour to moderate the differences in the subjective cases of Mr Mouhtaris and Mr Houda by the appointment of identical head sentences. While it might also have been open to her Honour to differentiate between the roles Mr Mouhtaris and Mr Houda played in the joint criminal enterprise and to have imposed different head sentences, I am satisfied Mr Mouhtaris has made good his contention that the proper application of parity principles should have resulted in a reduced sentence (relative to Mr Houda) only because of the greater emphasis that should have been given to his youth and prior good character in the appointment of his head sentence and that, viewed objectively, he has a legitimate sense of grievance for that reason.
I would uphold Mr Mouhtaris' second ground of appeal.
Because it will be necessary to resentence Mr Mouhtaris, his complaint that there was a discrete error in the sentencing judge's appointment of his offending in the mid-range of objective seriousness (Ground 1(b)), does not need to be determined. I should make clear, however, that I would also uphold Mr Mouhtaris' complaint that his sentence is manifestly excessive (ground 1(a) of his appeal) on the basis that, despite the objective seriousness of his offending, his youth and prior good character were not sufficiently reflected in a head sentence of 11 years and 6 months, so as to result in a sentence that is "unreasonable or plainly unjust".

[31]

Is Ms Yarnton's sentence manifestly excessive? (Ground 2 of her appeal)

The legal principles that apply to a ground of appeal contending that a sentence is either manifestly excessive or manifestly inadequate are well established. They have been regularly restated as requiring the applicant to establish that the sentencing discretion has miscarried resulting in a sentence that is unreasonable or plainly unjust.
Where either manifest excess or manifest inadequacy is asserted, an important limiting principle provides that appellate intervention is not justified simply because the sentence imposed by the sentencing court is markedly different from sentences imposed in other cases, or that the appellate court may have exercised the sentencing discretion differently. Both as a matter of sentencing principle, and a reflection of the breadth of the sentencing discretion which is directed to striking a balance between different and conflicting factors in the ultimate assessment of a just and appropriate sentence, there is no single correct sentence which may be imposed in a given case. It follows that a range of possible sentences could be imposed without error infecting any of them.
In sentencing Ms Yarnton, the sentencing judge was obliged to take into account a range of competing considerations in arriving at a just and proportionate sentence for the role she played as the principal in the joint criminal enterprise to murder her husband. The gravity of her offending and the high level of moral culpability it entailed was stark. Her Honour also took into account a range of subjective circumstances which she was satisfied operated in mitigation of sentence, albeit to some degree.
I am not satisfied that the sentence imposed, although stern and entailing a lengthy period in custody before Ms Yarnton is eligible for release to parole, has been shown to be unreasonable or plainly unjust. It was, in my view, a sentence that was within the sentencing judge's discretion.
I would reject Ms Yarnton's second ground of appeal.

[32]

Resentencing Mr Mouhtaris

Although I was not satisfied that the sentencing judge's appointment of Mr Mouhtaris' offending within the mid-range of objective seriousness contributed to the parity ground being upheld, for the purposes of resentence I do accept that there is a compelling inference, arising from the facts found by the sentencing judge (which I accept), that he was likely to be the last person to join the criminal enterprise and that the task of acquiring the gas bottles fell to him, in effect by default, as the passenger in Mr Houda's car, as distinct from his acquisition of the gas bottles being a role designated for him in advance.
It is difficult to assess the extent to which Mr Houda was involved in Ms Yarnton's plan to murder her husband. Although I am mindful of the caution that needs to be exercised in assuming that because he was Ms Hayes' partner he should be attributed with the same or similar level of involvement before 31 January 2015 as the sentencing judge attributed to Ms Hayes, I am prepared to draw the inference that Mr Houda's involvement predated Mr Mouhtaris' recruitment. I do accept, however, that Mr Mouhtaris travelled with Mr Houda from the petrol station at Bass Hill to the crime scene on 31 January 2015 with the intention of participating with Mr Houda in placing the gas bottles in the car where Ms Yarnton's husband was asleep and where, at the scene, he likely participated in the spreading of fuel around the car in preparation for its ignition.
In light of those facts and accepting the sentencing judge's resolution of the remaining disputed facts adverse to Mr Mouhtaris, I am satisfied that he should be resentenced on the basis that his offending is within the mid-range of objective seriousness (as distinct from being under the mid-range or in the low-range as contended for by his counsel both before a sentencing judge and in support of Ground 1(a) of the appeal), but that not of the same order of gravity as the role Mr Houda performed as reflected, for example, in the obvious trust Ms Yarnton reposed in Mr Houda by sending him the location where the car would be parked via a SMS message with a map or grid attached.
In addition to the evidence set out above, a further feature of the evidence relied upon by Mr Mouhtaris before the sentencing judge and of continuing significance to the issue of resentence concerned his work record as an apprentice glazier from 2017 which his father reported, in an interview with Mr Machlin, clinical psychologist, had "turned his [son's] life around". Mr Mouhtaris' arrest in 2018 and his remand in custody at that time necessarily interrupted the completion of his apprenticeship. However, a testimonial from his former employer confirmed that he would "not hesitate" in having Mr Mouhtaris resume his employment. Although that reference was prepared for the purpose of the sentence proceedings (apparently in support of a submission that he be considered for an Intensive Correction Order), there is nothing to indicate that the employer would take a different view upon Mr Mouhtaris' ultimate release to parole.
Mr Machlin also reported Mr Mouhtaris' positive efforts to vastly improve his work prospects and family functioning before his arrest. They are also features of his subjective circumstances on resentence entitled to weight in the assessment of his prospects of rehabilitation as a relatively young first offender, prospects which I assess, at this time, as sound and well advanced.
An affidavit from Mr Mouhtaris dated 1 October 2021 which was read on resentence is evidence of that fact.
In that affidavit he attests to having completed a number of programs in custody obtaining certificates in Business and Barbering. He also attests to having commenced a tertiary preparation program, a certificate for accounting and bookkeeping and some basic numeracy programs. Academic records annexed to his affidavit confirmed Mr Mouhtaris' completion of some courses and the commencement of others. Finally, he attests to having worked whilst in custody, including in the laundry and in waste management.
He states that he intends to continue to participate in any custodial-based programs offered to him in order to enhance his prospects of rehabilitation and to improve what he described as his "development, education and training".
I propose the following orders: Ms Yarnton 1. Leave to appeal against the sentence imposed upon Sharon Joan Yarnton is granted. 2. The appeal is dismissed. Mr Mouhtaris 1. Leave to appeal against the sentence imposed upon Anthony Mouhtaris is granted. 2. Quash the sentence imposed in the District Court on 17 June 2020 and in lieu thereof impose a non-parole period of 6 years and 9 months with a balance of term of 3 years and 9 months.
R A HULME J: I agree with Leeming JA and Fullerton J that neither of Ms Yarnton's grounds of appeal succeed. I also agree that Mr Mouhtaris' ground 2 (insofar as it is based on the sentence upon Ms Hayes) is concerned is not made out. I agree with the reasons of Fullerton J in these respects.
I agree with Leeming JA that Mr Mouhtaris' grounds 1(a) and (b), and 2 (insofar as it concerns the sentence imposed upon Mr Houda) should not be upheld for the reasons provided by his Honour.
Accordingly, I agree that both Ms Yarnton and Mr Mouhtaris should have a grant of leave to appeal but their appeals should be dismissed.

[33]

Endnotes

The applicants were also charged with one alternative count of laying down an explosive substance with intent to cause grievous bodily harm contrary to s 47 of the Crimes Act. That offence, for which no standard non-parole period is prescribed, carries a maximum penalty of 25 years.
Hayes was also sentenced for possession of a prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) on a s 166 certificate, relating to 1.2g of cannabis leaf in her possession on arrest. She was sentenced under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), with a conviction being recorded with no other penalty.
Taken into account by the sentencing judge to reduce the head sentence.
Taken into account by the sentencing judge in relation to special circumstances.
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ.
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301.
Usher v R [2016] NSWCCA 276 at [73] per N Adams J (with whom Hoeben CJ at CL and Button J agreed); Lloyd v R [2017] NSWCCA 303 at [96]-[97], recently cited with approval in Parkinson v R [2021] NSWCCA 98 at [108] per Wilson J (with whom Simpson AJA an Bellew J agreed).
Exhibit C.
Exhibit C at [16].
Exhibit C at [28].
Exhibit C at [32].
Exhibit C at [59].
Citing R v Rae [2001] NSWCCA 545 at [13].
Citing Blanco v R (1999) 106 A Crim R 303; [1999] NSWCCA 121 at [11] and [16]; Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 64-66; Sabra v R (2015) 257 A Crim R 33; [2015] NSWCCA 38 at [44]-[46].
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18.
Exhibits 2 and 3.
Exhibit 1.
Section 21A(3)(f) of the Crimes (Sentencing Procedure) Act.
Howard v R [2019] NSWCCA 109 per Fullerton J at [13] citing BP v R [2010] NSWCCA 159.
R v Hausman; Hausman v R; R v Rostankovski; Rostankovski v R [2022] NSWCCA 24 per Hamill J at [241]-[242]. 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: 01 April 2022

Legislation Cited (4)

Crimes Act 1900(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Criminal Appeal Act 1912(NSW)

Drug Misuse and Trafficking Act 1985(NSW)

Cases Cited (18)

Error in assessing objective seriousness as "mid-range"?

The submission underlying ground 1(a) was a simple one. It was that there was error in the finding that Mr Mouhtaris played a "critical role" in the joint criminal enterprise and more generally in finding that the gravity fell at the "mid-range level".
The passage to which the first aspect of this submission related is as follows: "As is the case of Mr Houda, Mr Mouhtaris played a critical role in the joint criminal enterprise. He obtained the two gas bottles, he was at the crime scene, and, as supported by the DNA profile and the glove and phone communications with Ms Hayes, he participated in the preparation to set the victim's car on fire, although it cannot be said what he specifically did in this regard. It is possible his role at the scene was for communication and being present to assist Mr Houda and that a DNA profile which he could not be excluded as a major contributor was found in a glove at the scene because of transference of DNA from Mr Houda."
Concerning objective seriousness, her Honour rejected a submission from the Crown that the offence committed by Mr Houda fell above the mid-range level of objective gravity. Her Honour said: "The combination of circumstances, including premeditation, renders the objective gravity of Mr Houda's offence at the midrange level, but because of the inability to know exactly what Mr Houda did at the scene or to find premeditation prior to the obtaining of the gas bottles, the criminality cannot be elevated to above the midrange level."
Her Honour rejected a similar submission from the Crown that the offence committed by Mr Mouhtaris fell above the mid-range level of objective gravity. Her Honour identified the conduct established beyond reasonable doubt as the two men driving in Mr Houda's car to Bass Hill to obtain the two gas bottles, then driving to the scene of the offence, and then: "Between either or both of the two men, the victim's car and its surrounding area were doused in petrol and a gas bottle was placed on the rear seat of the victim's car. The gas bottle was turned on. The second gas bottle was placed near the fuel tank of the victim's car and also turned on. A cigarette lighter was produced with the intention that the fuel would be ignited in order to murder the victim. At least one glove was used in order to avoid detection. Then the men drove Mr Houda's car to Caringbah where it was deliberately destroyed by fire in an effort to avoid detection. The evidence does not permit a finding as to which of Mr Mouhtaris or Mr Houda conducted the particular acts at the scene. It can only be reasonably inferred that, if Mr Mouhtaris did not commit a particular act, he was present and able to assist."
Her Honour concluded that "[i]n consistency with Mr Houda's position, the combination of circumstances, including the extent of premeditation, renders the objective gravity of Mr Mouhtaris' offence at the mid-range level."
The acquisition of the gas bottles, which Mr Mouhtaris accepted he did, was fairly described as "critical". It was a critical element in the attempt to murder Mr Yarnton, in the ordinary sense of that adjective that it was an indispensable element of the endeavour. Further, and contrary to what I understood to be the gravamen of this submission, it is clear that the finding of his role as "critical" was not used to elevate the seriousness of Mr Mouhtaris' offending over and above that of Mr Houda. That is plain from the immediately preceding words, "As is the case of Mr Houda".
Turning to the assessment of objective seriousness, the position is that, for reasons which are not challenged, her Honour found that both men were at the scene, with one or the other (or both) undertaking the particular acts including positioning the gas bottles, opening the taps and dousing the area in petrol, but without a finding that either man did any particular act, save that if he did not, he was present and able to assist the other.
It was open to characterise the objective seriousness of the part played by Mr Mouhtaris in the attempt to murder Mr Yarnton as "mid-range". He had acquired the gas bottles which were intended to explode and was personally in contact with Ms Hayes. He was present at the scene as they were put in place together with the petrol, and either he personally placed the materials near Mr Yarnton's unconscious body, or if not he was found to have been present and able to assist Mr Houda who did so. There was an element of premeditation, in acquiring the gas bottles and driving to Picnic Point, and gloves were used in order to attempt to avoid detection. This Court is slow to interfere with the assessment of objective seriousness made by a sentencing judge, as was observed in Mulato v R [2006] NSWCCA 282 at [37] and in numerous other decisions. This ground is not made out.

[1988] HCA 70

(1990) 169 CLR 525

(2011) 244 CLR 462

(1988) 166 CLR 59

(1997) 189 CLR 295