Alkanaan v R

[2017] NSWCCA 56

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Alkanaan v Regina [2017] NSWCCA 56
Hearing dates:	9 March 2017
Date of orders:	11 April 2017
Decision date:	11 April 2017
Before:	Payne JA at [1] Harrison J at [2] Schmidt J at [158]
Decision:	(1)    Grant leave to appeal. (2)    Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal – appeal against sentence – murder – offender suffering from significant mental illness – whether moral culpability reduced – whether offender inappropriate vehicle for general deterrence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Alvares v R; Farache v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 Aslan v R [2014] NSWCCA 114 Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; [2014] HCA 2 Batty v R [2016] NSWCCA 121 Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21 Chehab v R [2015] NSWCCA 44 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lee v R [2011] NSWCCA 169 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Makarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Ngati v R [2014] NSWCCA 125 Purtill v R [2016] NSWCCA 80 R v Bugmy [2012] NSWCCA 223 R v Cicekdag (2004) 150 A Crim R 299; [2004] NSWCCA 357 R v KB; R v JL; R v RJB [2011] NSWCCA 190 R v Sutton [2004] NSWCCA 225
Category:	Principal judgment
Parties:	Falah Alkanaan (Applicant) Regina (Crown)
Representation:	Counsel: M Ramage QC (Applicant) T Smith (Crown)   Solicitors: Jeffreys Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/40590
Publication restriction:	Nil
Decision under review	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Citation: [2015] NSWSC 904 Date of Decision: 10 July 2015 Before: Garling J File Number(s): 2013/40590

Judgment

1. PAYNE JA: I agree with Harrison J.

2. HARRISON J: On 16 February 2015, Falah Alkanaan was indicted on a charge that on 2 February 2013 he did murder Hussain Khanafer at Blackett in New South Wales. Mr Alkanaan pleaded not guilty. Following a trial before Garling J and a jury Mr Alkanaan was found guilty of murder. He had earlier pleaded guilty to a conspiracy offence arising directly out of the same facts.

3. On 10 July 2015, Garling J sentenced Mr Alkanaan to a total term of imprisonment of 28 years and 9 months with an effective non-parole period of 21 years and 9 months. For the murder, he was sentenced to a non-parole period of 21 years commencing on 8 August 2014 expiring on 7 August 2035. It is that sentence which is the subject of this appeal.

The facts

4. The facts were recorded in detail in his Honour’s remarks on sentence. They are as follows.

5. Mr Alkanaan and Mr Khanafer had known each other for about 18 months or so prior to the death of Mr Khanafer. Their relationship arose out of mutual drug dealings. Mr Khanafer would supply drugs to Mr Alkanaan. Mr Alkanaan would sometimes use those drugs, and sometimes sell them. From time to time he paid money to Mr Khanafer. He did other jobs for Mr Khanafer.

6. Mr Khanafer was obviously addicted to drugs, in particular cocaine and crystal methylamphetamine. He was using these drugs intravenously. The intake of these drugs clearly made Mr Khanafer at times unpredictable, violent and abusive.

7. As well, Mr Alkanaan and Mr Khanafer were accustomed to consult with an older man, described by Mr Alkanaan as being well respected, who was clearly the principal source of their drugs. Mr Alkanaan acquired from this person, for the purpose of self-protection whilst working in the milieu of drug distribution, the shortened shotgun which was used in the offence of murder. Mr Alkanaan kept that shortened shotgun in a loaded state, concealed in the backseat area of his Jeep Cherokee.

8. On 31 January 2013, Mr Khanafer sent Mr Alkanaan a text message which read “Cuz, call me before things get ugly, we need to talk”. Whilst there was some communication after this point, there was clearly no payment of money. On 2 February 2013, Mr Khanafer sent a further text message to Mr Alkanaan at 9.53am. It read as follows:

“Good morning cuz. I need my today $4,500. I have to give it to my brother. I [borrowed] $ of him. So wat time can I pick it up. Thanks cuz.”

9. This text message did not elicit any direct response from Mr Alkanaan.

10. On the morning of 2 February 2013, Mr Khanafer, together with his wife, Kelly Khanafer, and their 18 month old child, was driving from his home to Merrylands. After calling into the Lethbridge Park Pharmacy, and leaving there at about 12.30pm, they drove to Mr Alkanaan’s house, and parked the car outside. Mr Khanafer went into the property to meet with Mr Alkanaan.

11. They were then in each other’s company for about 30 minutes. During this time, they were seen to be conversing together at the front of the house, each speaking on their respective mobile phones and, on one occasion at least, Mr Khanafer was seen to be speaking on Mr Alkanaan’s mobile phone. The evidence was that there were no raised voices heard, no apparent argument or other signs of any significant disagreement between them. Mr Alkanaan was seen to re-enter the house on a number of occasions and come back out to the front veranda.

12. There was an ongoing dispute between Mr Alkanaan and Mr Khanafer over a few thousand dollars. Mr Alkanaan was unwilling to pay the debt, which Mr Khanafer claimed.

13. Shortly after 12.50pm, a silver Ford Falcon being driven by Mr Ben Toleafoa, arrived at the scene. It was parked directly out the front of Mr Alkanaan’s house, behind the car in which Mr Khanafer had arrived and in which his wife, Kelly Khanafer, and their child, were sitting. Mr Toleafoa was at that time a very large and physically intimidating man.

14. The timing of the arrival of that car was very shortly after a 23 second telephone call from Mr Alkanaan’s mobile phone to Mr Toleafoa’s mobile phone. Mr Alkanaan denied knowing Mr Toleafoa, but his Honour was satisfied beyond reasonable doubt that Mr Toleafoa and Mr Alkanaan were known to each other, that Mr Alkanaan regarded Mr Toleafoa as “his man”, and that it was Mr Alkanaan who summoned Mr Toleafoa to his house. He did so to provide back up and, if necessary, assistance in the resolution of his ongoing discussions with Mr Khanafer.

15. After the silver Ford Falcon arrived Mr Khanafer left the front of the house and walked out onto Boldrewood Road where he stood at the driver’s side door of the silver Ford Falcon. He then spoke with Mr Toleafoa. There was no anger in that conversation. The evidence is that they were talking as though they were friends and, although Mr Khanafer was using his hands, that was part of an ordinary, non-confrontational conversation.

16. Whilst Mr Khanafer was standing on the road surface, Mr Alkanaan left the front veranda of his house, and walked to his Jeep where he retrieved the loaded shortened shotgun. He then walked from the driveway where his Jeep was parked, onto the road surface, around the front of the Ford Falcon and approached Mr Khanafer.

17. Mr Khanafer commenced to stand up from where he had been leaning on the vehicle talking to Mr Toleafoa when without any warning, or any communication at all, Mr Alkanaan pointed the shotgun at Mr Khanafer’s head and discharged it. Mr Khanafer dropped to the ground. He died instantly.

18. The silver Ford Falcon driven by Mr Toleafoa then reversed and drove in a northerly direction along Boldrewood Road without striking Mr Khanafer’s body. As it drew level with the body, Mr Alkanaan opened the passenger side door and got in. At about that time he discharged his shotgun a second time.

19. Mr Toleafoa then drove off in a northerly direction along Boldrewood Road at high speed. He turned right into Manifold Street and then proceeded to Carlisle Street. After about 250 or so metres, Mr Toleafoa stopped the vehicle and allowed Mr Alkanaan to escape along a network of footpaths in the Bidwell area. As he was doing so, Mr Alkanaan dismantled the shotgun and disposed of it by putting it into a drainage pit along the pathway.

20. Thereafter, Mr Alkanaan fled from the police and took refuge in the North Richmond area, at the home of two friends. He made arrangements to obtain an airline ticket from Sydney to Darwin. He made arrangements for accommodation at a house in Darwin, and set about disguising himself and carrying false identification.

21. Unbeknownst to Mr Alkanaan, his telephone calls making these arrangements were lawfully intercepted by the police. They were present at Sydney Domestic Airport to arrest him when he attempted to leave NSW. He had adopted a rudimentary disguise.

22. Immediately upon his arrest, Mr Alkanaan gave an entirely false story to the arresting police, and then during a recorded interview later that evening at the St George Police Station, he persisted with a wholly concocted story, claiming that he was not involved at all in the shooting death of Mr Khanafer.

23. After being arrested and charged, Mr Alkanaan was remanded in custody. Whilst at the Metropolitan Reception and Remand Centre, his conversations with his girlfriend and her mother were lawfully intercepted and recorded.

24. It became apparent from those conversations that, although he denied any involvement to his girlfriend and her mother (which denial he accepts was entirely false), he procured their assistance to take steps to interfere with Mrs Khanafer and prevent her from providing a truthful account of the circumstances of the murder which would implicate him in any way.

25. Mr Alkanaan asked his partner and her mother to speak with an intermediary to get him to visit Mrs Khanafer. Mr Alkanaan wanted the intermediary to “… shut her up straight away”. He wrongly thought Mrs Khanafer was the only witness to the shooting. He made it clear that he wanted Mrs Khanafer to change her account to the police and say that she was not sure that Mr Alkanaan was the person who fired the shotgun.

26. At one stage, during the course of these conversations, Mr Alkanaan told his partner that he was willing to pay $100,000 to the intermediary for him to carry out the task of persuading Mrs Khanafer to change her account of the shooting.

27. During the course of these intercepted telephone calls, Mr Alkanaan also revealed his close relationship with Mr Ben Toleafoa whom he described as “my man”. He also disclosed why he shot Mr Khanafer. In one of the phone calls to Ms Tamara Nash, a female acquaintance with whom he was on good terms, Mr Alkanaan told Ms Nash that:

“Alkanaan: I told everyone; don’t go near my house or otherwise I will blow your fuckin head off …

Alkanaan: One piece of shit didn’t listen. He copped it. Okay.

…

Alkanaan: That’s the rule. No one comes near my mum’s. Hey.”

28. Mr Alkanaan formed the view that Mr Khanafer had overstepped the mark by visiting him at his house, where his mother and siblings lived, for purposes of debt collection. In those circumstances, Mr Alkanaan decided that the best method of repaying the debt and enforcing his “rule” was to kill Mr Khanafer. He did so deliberately with an intention to kill Mr Khanafer. He then set about covering up his crime by fleeing from the scene, lying to the police and by engaging in the conspiracy to which he has pleaded guilty. The aim of that conduct was to conceal his involvement in the crime and thereby escape punishment for it.

Grounds of appeal

29. Mr Alkanaan seeks leave to appeal against the severity of his sentence for murder upon the following grounds:

1. The sentencing judge erred in his assessment of objective criminality.

2. The sentencing judge erred in his treatment of Mr Alkanaan’s subjective features.

3. The sentencing judge erred in respect of aggravating factors.

4. The sentencing judge erred in finding no remorse.

5. The sentencing judge erred in failing to find special circumstances.

6. The sentence was manifestly excessive.

Ground 1 – objective criminality

30. The sentencing judge assessed the objective seriousness of the murder offence as above the mid-range of objective seriousness. Mr Alkanaan contended that in making that finding his Honour unreasonably rejected, or ignored, or failed to take into account important matters relevant to his determination and made findings in respect of a number of important matters that were not open to him. Mr Alkanaan contended that if these matters are taken into account, a finding that the objective criminality was in the mid-range should have been made.

31. Mr Alkanaan at trial did not seek to deny that he shot Mr Khanafer. He said that he did so in a state of fear and anger after being threatened with extreme violence over the phone and at the scene, by a man he knew to be violent and dangerous. Mr Alkanaan was the only person who could give evidence of his conversation with Mr Khanafer immediately before the shooting. It is apparent that the jury rejected self-defence. That did not, however, foreclose the significance of the threats made by Mr Khanafer to Mr Alkanaan. Mr Toleafoa was there for “backup” if necessary, suggesting that threats had been made to Mr Alkanaan by Mr Khanafer.

32. Mr Alkanaan contended that it was not open to the sentencing judge to find that the jury had rejected those parts of Mr Alkanaan’s evidence in which he gave evidence of threats made to him by Mr Khanafer, nor that the threats were founded in Mr Khanafer’s demands for more money.

33. Mr Alkanaan also submitted that it was not open to the sentencing judge to find that there was no provocative conduct by Mr Khanafer. He contended that his Honour’s finding ignored the undisputed evidence of the known violent propensities of Mr Khanafer, his drug addiction and pressing need for money. Mr Khanafer had also threatened to kill Mr Alkanaan, and was known to have violently assaulted his own wife and son. Mrs Khanafer described her husband as “well and truly out of control”, “very aggressive” and “very paranoid”. Mr Khanafer had access to a shotgun and a handgun. Mr Alkanaan and his family had been threatened with extreme violence up to just before the shooting. Mr Alkanaan was aware of these things.

34. Mr Alkanaan emphasised the following evidence.

35. At 12.49pm on the day of the shooting Mr Alkanaan received a message saying, “you wonna start dealing in my area yah gronk I will pop yah head ya dog”. He recalled that message or its effect as “What are you doing selling in my area I’ll pop your head”.

36. There was evidence that after Mr Khanafer arrived at his house Mr Alkanaan asked him about the message and was told, “that’s the way it is”. Mr Alkanaan said that Mr Khanafer kept saying he needed or wanted money and would come inside the house unless he was given some. Mr Khanafer repeated this although Mr Alkanaan said, “There’s no money”. He referred to Mr Khanafer as “…the way he was saying it, he was really angry at the time. He was twitching and everything, I knew he was off his face. I knew he was on something”. Asked if Mr Khanafer had made any more threats to him of any kind, Mr Alkanaan said that on the veranda of his house Mr Khanafer said “he promise he would kill me”. When asked why he resorted to shooting Mr Khanafer, he said “honestly I knew from the past he was really violent”. He repeated that he was in fear for his family and himself. The basis of that fear was that “he was going to turn around and attack”. Under cross-examination, Mr Alkanaan said that Mr Khanafer had threatened to kill him a number of times, including once that day. He described Mr Khanafer as “a very violent man”. He referred to himself by contrast, saying “I didn’t go to him. I don’t go to people’s houses and stand over them in front of their family for money. I’m not that kind of man”.

37. Mrs Khanafer, in addition to her evidence about her husband’s violent nature and behaviour, gave evidence that the decision to attend Mr Alkanaan’s house was made by her husband as they were in the process of driving somewhere else. It was not disputed that Mr Alkanaan was unaware that Mr Khanafer was proposing to come to his mother’s house where he lived with her and his children until he was woken by loud knocking on the front door. According to his sworn evidence, Mr Alkanaan said that Mr Khanafer said he wanted Mr Alkanaan to give him “6 grand”, and he was going away. Mr Khanafer later said that he wanted “4 grand”. Mr Alkanaan said that he told him, “I’ve got nothing for you and you stay away from me”, and Mr Khanafer said “I promise, everyone in this house they will never wake up again”. Mr Alkanaan said that he took that to mean that Mr Khanafer was going to do something serious.

38. Mr Alkanaan’s evidence about these verbal threats by Mr Khanafer and being in fear of him was not challenged by the Crown.

39. In the course of her evidence, Mrs Khanafer described her husband’s serious addiction to cocaine – that he was injecting it a number of times per day – and that she was aware that his cocaine habit was very expensive. According to Mr Khanafer’s brother, both Mr Khanafer and his wife were smoking “crack”. The toxicology report confirmed Mr Khanafer’s use of cocaine and a cocktail of other drugs, including oxazepam, diazepam, nordiazepam, ibuprofen, codeine, methylecgonine, alprazolam, benzoylecgonine and levamisole. There was also methylamphetamine and amphetamine in potentially toxic levels in his blood. Examination of Mr Khanafer’s lungs confirmed that he was an intravenous user. A few days before his death, he had gone to his brother with a swollen arm claiming that he had punched someone who owed him money and he had sent him to Westmead Hospital. However, Mrs Khanafer said that her husband had incorrectly used a needle.

40. Mrs Khanafer also gave evidence that she recalled that before going overseas Mr Alkanaan had lent her husband some money which he was repaying. She said that there were at least half a dozen occasions of telephone contact where she, in effect, pleaded with Mr Alkanaan not to give any money to her husband because of his drug problem. That was confirmed by Mr Alkanaan in his own evidence. In addition, both Mr Khanafer’s brother and his wife claimed separately to have provided the money for Mr Khanafer to go on a trip to Fiji for rehabilitation. His brother claimed to have given him $10,000 in cash to pay for that purpose and was to give him a further $10,000 on the morning of his death. Mrs Khanafer gave evidence that she had booked and paid for his trip.

41. Mr Alkanaan contended that the sentencing judge ignored his evidence and that given by Mrs Khanafer and Mr Khanafer’s brother, and found that “there was an ongoing dispute between the offender and the deceased over a few thousand dollars. The offender was unwilling to pay the debt which Mr Khanafer claimed”. His Honour described what had occurred as “Mr Alkanaan decided that the best way of repaying the debt and enforcing his rule was to kill Mr Khanafer”. His Honour said “true it is that the deceased sought money from Mr Alkanaan but it was money which the deceased thought was owed to him”.

42. Mr Alkanaan submitted that this finding, which dramatically escalated Mr Alkanaan’s objective criminality, was not open to his Honour. Nor was his finding “that there was no apparent reason for so doing other than to assert his domination of Mr Khanafer – it was a senseless, brutal and wholly unnecessary killing”.

43. Mr Alkanaan contended that in each case the sentencing judge ignored the evidence of Mr Khanafer’s violent heavy drug addiction, his need for money and known propensity for violence, and that he ignored or failed to take into account evidence of Mr Khanafer owing Mr Alkanaan money.

44. The only evidence that Mr Khanafer threatened Mr Alkanaan with extreme violence by the phone and in person minutes before the shooting was given by Mr Alkanaan. In the circumstances of his Honour not accepting the truth of Mr Alkanaan’s evidence and there being no other evidence of threats of violence being made immediately prior to the shooting, it was clearly open to his Honour to not make such a finding.

30. The Crown emphasised that his Honour expressly noted that Mr Alkanaan and Mr Khanafer were in each other’s company for about 30 minutes during which they were seen to converse in front of the house, each speaking on their respective mobile phones and, on one occasion at least, Mr Khanafer was seen to be speaking on Mr Alkanaan’s phone. Further, his Honour noted that there was no evidence of raised voices or of any apparent argument or other signs of significant disagreement between them.

31. The Crown emphasised that Mr Alkanaan’s evidence of the conversation immediately before the shooting did not have to be accepted. His Honour and the jury were best placed to assess his evidence. The jury rejected the defence of self-defence and his Honour rejected the contention that such a conversation occurred in the terms described by Mr Alkanaan.

32. Mr Alkanaan relies upon the fact that there was only one person who could give evidence of the critical pre-shooting conversation. That submission fails to appreciate that that is the very reason why his Honour declined to make any such finding. His Honour expressly found that Mr Alkanaan gave little, if any, truthful evidence and that he was unable to accept it unless it constituted an admission against interest or unless it was independently corroborated.

33. His Honour found that there was an ongoing dispute between the two men over a few thousand dollars and Mr Alkanaan was unwilling to pay the debt which Mr Khanafer claimed.

34. Mr Toleafoa’s presence was a neutral fact, not consistent only with Mr Alkanaan’s version of why he was there. That was his Honour’s conclusion and it has not been shown to be unavailable to him.

35. It was equally open to his Honour to reject the evidence of Mr Alkanaan that he had been threatened by Mr Khanafer.

36. His Honour referred to the relevant text messages that had been sent from Mr Khanafer’s phone on 1 February 2013 and the morning of the offence. They were consistent with him claiming that Mr Alkanaan owed him a debt, which his Honour ultimately found. It was open to his Honour to reject Mr Alkanaan’s evidence to the effect that it was Mr Khanafer who owed the money and to accept that in fact it was Mr Khanafer who was demanding further money from him.

37. Finally, his Honour had regard to provocation in the context of it being a mitigating factor pursuant to s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 and not in relation to it being a partial defence to murder. It was in that context that his Honour rejected the submission that Mr Khanafer provoked Mr Alkanaan by his presence and his demands for money.

38. His Honour referred to the fact that Mr Khanafer was obviously addicted to drugs that at times made him unpredictable, violent and abusive. His Honour also acknowledged that Mr Khanafer was seeking money from Mr Alkanaan. These matters did not stand in the way of his Honour’s finding that the relevant mitigating factor had not been established.

39. As for the other two “threatening” text messages sent on the day of the shooting upon which Mr Alkanaan relied, there was no evidence of their origin apart from Mr Alkanaan’s own assertion that he believed them to have been sent by Mr Khanafer. They were not even sent from Mr Khanafer’s mobile phone.

40. Further, when Mr Alkanaan went to his Jeep to get the shotgun, Mr Khanafer was speaking with Mr Toleafoa who was seated in a car. As his Honour found, there was no anger in that conversation. On the contrary, the evidence is that they were talking as though they were friends and although Mr Khanafer was using his hands, it was part of an ordinary non-confrontational conversation. Moreover, Mr Alkanaan then walked up to Mr Khanafer and pointed the shotgun at his head and discharged it without warning or any communication at all.

41. His Honour found that there was an ongoing dispute between the men over a few thousand dollars and that Mr Alkanaan was unwilling to pay it. His Honour later went on to observe that intercepted phone calls with Mr Alkanaan’s female acquaintance revealed what was in his Honour’s view “the real truth” about why he shot Mr Khanafer. These have been referred to at [27]. His Honour then said:

“In short, in the milieu of drug dealing, Mr Alkanaan formed the view that Mr Khanafer had overstepped the mark by visiting him at his house, where his mother and siblings lived, for the purposes of debt collection. In those circumstances, Mr Alkanaan decided the best method of repaying the debt and enforcing his ‘rule’ was to kill Mr Khanafer. He did so deliberately…”

57. It is of course not sufficient for an appellant merely to assert what a sentencing judge should have found. It is trite to observe that views may vary even upon the same facts. A successful challenge to a finding of objective seriousness requires that error be established. House v The King (1936) 55 CLR 499; [1936] HCA 40 describes the types of error that will suffice. The assessment of the objective seriousness of an offence is definitively evaluative, so that differing outcomes within a range of acceptable tolerances is permissible.

58. Moreover, in the present case his Honour did not accept the truth of Mr Alkanaan’s evidence, having observed him give evidence during the course of the trial. At [33] and [34] of his remarks on sentence, he said this:

“[33] In the process of finding the relevant facts, it is necessary for me to specifically record that I am quite unable to accept the truth of the evidence given by Mr Alkanaan as to what occurred on this day.

[34] I found him to be a thoroughly unpersuasive witness. He made statements in evidence which were patently untrue, particularly about the contents of recorded telephone calls. He must have known when he gave his evidence, that such statements were untrue…In fact I am satisfied that Mr Alkanaan gave little, if any, truthful evidence, and I am unable to accept his version of events unless it constitutes an admission against his interests or unless it is independently corroborated.”

59. The Crown submitted in response that it was clearly open to his Honour to make such a finding. Indeed, it is not challenged. However, Mr Alkanaan’s challenge to his Honour’s assessment of objective seriousness draws heavily upon his own evidence about whether he was in a state of fear and anger after being threatened by Mr Khanafer as well as his evidence of the conversation immediately preceding the shooting. The challenge to the finding that there was no provocation from Mr Khanafer’s conduct also relies upon acceptance of Mr Alkanaan’s evidence.

60. When assessing the objective seriousness of the offence, his Honour took into account the following:

“[75] In my assessment, the criminality of the murder was very serious. In broad daylight, in a suburban street, in the presence of the deceased’s wife and his 18 month old child, Mr Alkanaan has murdered Mr Khanafer in a violent manner by firing a shortened shotgun at him from a short distance away. There was no apparent reason for so doing other than to assert his own domination of Mr Khanafer. It was a senseless, brutal and wholly unnecessary killing.”

61. His Honour was satisfied that Mr Alkanaan shot Mr Khanafer with an intention to kill. To succeed on this ground he must satisfy the Court that the finding of objective seriousness of “above the mid-range” was not reasonably open or that the conclusion was arrived at by reference to extraneous matters or by failing to take account of relevant matters. Mr Alkanaan’s contentions are significantly dependent upon an acceptance of his version of what occurred, including his own fears, expectations and motivations. His Honour was clearly entitled to reject Mr Alkanaan’s evidence on these matters and he did so. Mr Alkanaan has not established that his Honour erred in his approach. Mr Alkanaan has correspondingly not established that his Honour erred in his assessment of the objective seriousness of the offending.

62. I would reject this ground of appeal.

Ground 2 – subjective features

63. Mr Alkanaan’s mother gave evidence of her son’s extremely traumatic early life when he was an infant, then a child growing up initially in Basra, Iraq then close to that city during various phases when the area was under siege and/or direct attack from Iranian forces.

64. This occurred between 1985 and 1986 when Basra was being shelled by artillery, bombed and struck by missiles. The area where Mr Alkanaan lived suffered heavily. His home was blown up, his grandfather suffered shrapnel wounds, his family fled to a village outside Basra but it was subjected to bombings and air raids. The family had to get used to hearing explosions, and seeing houses turned to rubble and dead people on the streets. During the Gulf War, which began in 1990 when Mr Alkanaan was 5, Basra again became the target for bombing. The post office on the way to his school was bombed along with many houses in their area. There were air raid sirens going off day and night, although most attacks were at night. There were no air raid shelters and the only refuge was under the bottom staircase of Mr Alkanaan’s grandmother’s house. Every day there were bodies in the street.

65. As a consequence, Mr Alkanaan became a very anxious child who developed an occasional stutter, had a problem with his hearing and who suffered from nightmares. His mother noted that he would refuse to come out from under the stairs even after the bombing had stopped. In addition, the whole family lived in a constant state of fear (which became terror) that they would be executed by Ba’athist officials as a result of the father’s desertion from the Iraqi army.

66. Mr Alkanaan’s mother described him being bullied at school and laughed at because of his inability to learn English and his stutter. His nightmares persisted.

67. The only reference by the sentencing judge to Mr Alkanaan’s childhood background is at [83] in his remarks on sentence as follows:

“[83] His early childhood in Basra was a time of political turmoil and civil unrest. Basra was the target of significant military action during the invasion of Kuwait by Iraq. Mr Alkanaan was exposed to the traumatic consequences of the war.”

68. Mr Alkanaan submitted that this brief reference fails to do justice to the mental trauma he sustained as a child, its ongoing effect on him and the effect that threats of violence were likely to have on such a person. Mr Alkanaan submitted that his fearfulness, his overly anxious personality and his reaction to fear were highly relevant and should have been taken into account in mitigation.

69. At [94] of his remarks on sentence, his Honour said “Mr Alkanaan has a history of some mental health problems. Those problems are not relied on as explaining his offence”. His Honour went on to say:

“[94] Rather, to the extent that they will bother Mr Alkanaan, even if he is medicated, I will have regard to them in the context of the need for specific deterrence and the impact upon his time in custody. I note that he requires ongoing and long-term psychiatric treatment for these mental health problems. However there is no suggestion that such treatment is not adequately available to him in custody.”

70. Evidence was called at the sentencing hearing about Mr Alkanaan’s mental problems. Submissions were made relying on Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21, Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and Muldrock v The Queen (2011) 244 CLR 120; (2011) HCA 39 that it was sufficient if his mental condition contributed to the commission of the offence. That would bear upon general and specific deterrence as well as considerations of rehabilitation.

71. The only reference in his Honour’s remarks on sentence to any of the material is to be found at [83], the reference at [94] referred to above and at [89]-[93] regarding Mr Alkanaan’s IQ as follows:

“[89] A recent test undertaken by Dr Reid, a clinical psychologist, has established that Mr Alkanaan is a man of limited intelligence with a full scale IQ of 75, which places him at the 5th percentile for people of a similar age. Earlier tests found that his IQ was 69. At that range of IQ (69-75), he may be described as falling within the borderline to mildly intellectually disabled category, but as Dr Nielssen said in evidence which I accept, a conclusion of mild intellectual disability involves a broader assessment than just an IQ score.

[90] On a review of his life activities, and the things which he was able to do, I am satisfied that Mr Alkanaan knew perfectly well what he was doing when he committed both of these offences, and he knew perfectly well that what he was doing was wrong. I accept Dr Nielssen’s opinion that Mr Alkanaan’s low intelligence is likely to be associated with reduced impulse control, and a reduced ability to consider the likely consequence of his actions. However, I am not satisfied that this low intelligence is the explanation for the offence of murder.

[91] Mr Alkanaan was able to take care of himself, to live and travel independently. He was able to develop intimate relationships and be a father to a number of children. He was able to work in a variety of, largely unskilled, jobs. Importantly, he was able to carry on an apparently successful drug dealing business. In other words, he could manage such arithmetic and monetary calculations as were necessary to deal in drugs.

[92] He was also able to make arrangements to flee NSW after the murder and then, when arrested, to concoct and maintain a false account. He was also able to give evidence in the trial for a lengthy period. He did not seem to have any inability to understand the questions which were asked of him.

[93] Even if his formal IQ assessment suggests a mild intellectual disability, I am not satisfied that such disability has any real or significant impact on his life, and any of his ordinary daily activities. It does not significantly affect his functioning. It does not impact in any significant way on an assessment of his moral culpability for these offences. Nor, in my assessment, is it such as to make Mr Alkanaan an inappropriate medium for general deterrence: cf Muldrock at [50]-[55].”

72. Mr Alkanaan submitted that his Honour appears to have misunderstood, and consequently not taken account of, the submissions made on his behalf and the material on which they were based, that his mental problems were highly relevant and contributed to the commission of the offence (as per the reference to Benitez and De La Rosa) and provided an explanation as to how his conduct should be regarded as at least in part a reaction to his post-traumatic stress syndrome in committing what the sentencing judge described at [75] as “a senseless, brutal and totally unnecessary killing”.

73. Mr Alkanaan also contended that his Honour ignored or dismissed from consideration the expert opinions that he suffered from post-traumatic stress syndrome and probably from schizophrenia.

74. The relevant material relied upon by Mr Alkanaan in this respect can be summarised as follows:

75. First, Dr Wayne J Reid, a clinical neuropsychologist and psychologist, examined Mr Alkanaan on 22 May 2015. His report dated 28 May 2015 was tendered on 16 June 2015 without objection. He included articles on childhood trauma, psychosis and schizophrenia, and neurobiological sequelae of childhood trauma post-traumatic stress disorders in children.

76. Mr Alkanaan confirmed to Dr Reid some of the background to his childhood of which his mother gave evidence. Among other things he referred to Mr Alkanaan having witnessed violence and traumatic events. Mr Alkanaan had seen a psychologist prior to coming to prison for treatment for anxiety attacks. He described hearing voices. Dr Reid conducted a number of tests establishing among other things that on limited testing of his verbal intellectual abilities, Mr Alkanaan’s verbal abstract reasoning skills were in the extremely low range. On a cognitive screening test, where the cut off for detecting significant cognitive impairment was a score of less than 26, Mr Alkanaan scored 21. On a formal assessment of his psychological state, he reported extremely severe ratings on the depression and anxiety scales.

77. Dr Reid referred to Mr Alkanaan having been treated for anxiety attacks and medicated on Avanza for some 3 years and Risperidone (an atypical antipsychotic) since being in prison. He noted that as at 18 March 2015, Dr Lee was of the impression that Mr Alkanaan had symptoms of schizophrenia.

78. Dr Reid opined that “Mr Alkanaan’s history also indicates he suffers symptoms of Post-Traumatic Stress from childhood exposure to violence and trauma through his childhood in Iran [sic, Iraq].” He reported “on current psychological assessment he was found to be of borderline intellectual ability with a full scale IQ of 75 placing him at the 5th percentile for persons of similar age. He also showed evidence of generalised cognitive impairment on a cognitive screening test (MOCA), impairment in motor learning and is illiterate”.

79. Dr Reid continued:

“On examination of his psychological state he currently presents with symptoms consistent with a psychosis and from his history this is secondary to childhood post-traumatic stress disorder. Furthermore, it is on the balance of probability, his early childhood trauma has affected the development of his brain giving rise to his mild intellectual disability and later development of depression and psychosis. I am also of the opinion his history of drug abuse in part has been associated with self-medication for his symptoms of post-traumatic stress disorder.”

80. Dr Reid supported his opinions on the impact of Mr Alkanaan’s childhood trauma on his behaviour and psychological state with 2 attached papers. Dr Reid was not required for cross-examination and the opinions expressed by him were not challenged by the Crown.

81. Secondly, Alison Cullen, a forensic psychologist, saw Mr Alkanaan on 15 April 2015 and reported three days later. She took a history which included that Mr Alkanaan had seen a psychologist named Emad prior to his arrest for really bad anxiety, had started hearing things/voices in his head, and was prescribed Avanza. She noted that Mr Alkanaan spoke with a stutter and reported symptoms of depersonalisation and derealisation and that he continued to hear voices despite being on medication. She noted that he described his childhood in Iraq as “really rough”, having witnessed a lot of things, including dead people, shootings, firearms everywhere and everyone confused. She also noted that he had no fathering when he was young in Iraq. Later a drunk and very abusive father was really violent towards him and his mother. When Mr Alkanaan endeavoured to protect his mother he was himself so badly beaten as twice to require hospitalisation. As a result his father was arrested and Mr Alkanaan was placed by police in a refuge for some months.

82. Dr Cullen confirmed many of these details with Mr Alkanaan’s mother who told her that she had witnessed her son while sleeping “raising his arms and screaming don’t hurt me, don’t hurt me”.

83. Dr Cullen also noted that Mr Alkanaan had been diagnosed with both Chronic Post Traumatic Stress Disorder and severe Substance Use Disorder as well as Social Anxiety Disorder (Social Phobia) by Mr Girgis. She noted that “it is evident that Mr Alkanaan has…for an extended period of time been experiencing various psychological symptoms consistent with marked anxiety”. She concluded that Mr Alkanaan currently satisfies the DSM-V diagnosis for (Chronic) Post-Traumatic Stress Disorder with dissociative symptoms. That opinion was not challenged by the Crown. She was cross-examined at some length in respect of her findings that Mr Alkanaan had a low IQ and might have an intellectual disability operating at the level of a ten year old.

84. Thirdly, the PSR Report noted that Mr Alkanaan had been diagnosed by his treating psychologist in the community as having a Social Anxiety Disorder, for which he was treated.

80. Fourthly, Dr Olav Nielssen, a forensic psychiatrist, saw Mr Alkanaan on 26 May 2015 and again on 2 June 2015. He was provided with a number of hospital and medical records including medical records from Justice Health, clinical notes from Nepean Hospital and medical records from Canterbury Hospital, as well as the Crown case statements, the ERISP, a transcript of Mr Alkanaan’s evidence in the trial and reports by Dr Cullen and Dr Reid. His report dated 16 June 2015 was tendered without objection. Dr Nielssen summarised Mr Alkanaan’s history commencing with his admission to Nepean Hospital between 19 February 2011 and 21 February 2011 when he was brought in with a cable around his neck. He was given a diagnosis of adjustment disorder with depressed and anxious mood.

81. Dr Nielssen noted that the first detailed mental health assessment of Mr Alkanaan was made at Parklea Prison on 8 April 2013 by a C Ford who concluded that he had post-traumatic stress disorder and a mild intellectual disability. A psychiatrist confirmed that diagnosis on 15 April 2013 and Mr Alkanaan commenced treatment with mirtazapine. On a further review by a psychiatrist on 10 February 2014, when he reported the experience of hearing numerous voices, Mr Alkanaan was diagnosed with PTSD and brief reactive psychosis. On 14 April 2015, the psychiatrist diagnosed schizophreniform illness and low IQ and increased his risperidone dosage. He was reviewed by another psychiatrist, Dr Gordon Elliott, on 26 September 2014, who noted that Mr Alkanaan had limited IQ. He changed his medication to aripiprazole, an anti-psychotic drug administered for schizophrenia and bi-polar disorder. The dose of that medication was increased by Dr Le on 22 January 2015. On 5 February 2015, Dr Le changed the medication back to risperidone after getting a history of command and referential hallucinations from Mr Alkanaan. On 25 March 2015, Dr Le noted that his impression was that Mr Alkanaan was schizophrenic.

82. Dr Nielssen’s own observation was that Mr Alkanaan spoke with a prominent stutter; his answers were brief and rather literal in a way that was consistent with chronic schizophrenia and subnormal intelligence. He was able to respond to most questions, but was unable to provide much detail, for example the birthdays of his three children. Dr Nielssen opined that Mr Alkanaan had a mild intellectual disability.

83. Dr Nielssen noted what he described as the emergence of typical symptoms of schizophrenia in the form of hallucinations of persecutory beliefs arising from those symptoms, as well as a number of risk factors which increased the probability of developing schizophrenia. These included a family history of mental illness, a father diagnosed with schizophrenia, and exposure to war related trauma in early childhood. He also included physical abuse at the hands of his father in early adolescence, learning problems that were not evident in his three siblings, several head injuries, abuse of cannabis and stimulant drugs and a substance abuse disorder.

84. Dr Nielssen concluded that Mr Alkanaan probably had schizophrenia. Although Dr Nielssen was not able to give a precise time for the onset of Mr Alkanaan’s mental illness, he said:

“The prodromal phase of schizophrenia, which is the period between the decline in social function and the emergence of frank psychotic symptoms is known to be a period with a greatly increased risk of both minor and serious violence and self-harm, because of the presence of markedly unstable and dysphoric mood and attenuated psychotic symptoms”.

90. In cross-examination, Dr Nielssen agreed that certain features noted by his mother and detailed in her statement – giving up his job, becoming increasingly erratic, started keeping odd hours, switching from nice to angry very quickly and raising his voice if his mother tried to lecture him, becoming easily tricked into doing silly things – were commonly described by parents of young people who have emerging psychosis and all those behaviours are consistent with prodromal schizophrenia. These are indications of the prodromal stage of mental illness. He conceded that they might be indicative of other things such as drug use.

91. Dr Nielssen referred to the Nepean Hospital records from 19 February 2011 to 21 February 2011 where Mr Alkanaan was brought to the hospital by the police with a cable tied around his neck. He was diagnosed then as having an adjustment disorder with depressed and anxious mood, prescribed mirtazapine and referred to Blacktown mental health team though no symptoms of psychotic illness were elicited at the time.

92. That incident was referred to in the statement of Mr Alkanaan’s mother who described an argument between her son and his father where:

“…both were shouting. Falah became very upset, put a rope around his neck and threatened to kill himself. The police were called and he was taken off to hospital”.

93. Dr Nielssen said of this that although in looking through the notes he could not see any indicators of emerging mental illness. He said:

“It is very common for people who are experiencing onset of psychosis to self-harm. About 20 percent of people who are subsequently diagnosed with schizophrenia have made suicide attempts in the preceding course of years”.

94. Dr Nielssen was cross-examined about his opinion that Mr Alkanaan suffered from a mild intellectual disability. He described Mr Alkanaan’s IQ as in the subnormal range or below 80. He thought that the difficulty in reaching a positive determination as to his IQ was not lack of language skills but “the difficulty was impoverished thinking associated with a low IQ and mental illness”. When he was asked to comment on the fact that Mr Alkanaan had a practical ability to do certain things such as to conspire with others to interfere with a Crown witness, he said:

“I take your point that there was some planning involved. I did read the Crown case summary of that charge, the quotes attributed to him were pretty, you know basic – you know, I didn’t see that they required a very high level of reasoning ability”.

95. Questioned about the difference between someone who was mildly intellectually disabled as opposed to being of low intelligence, he said that “it was very hard to measure”.

96. Dr Nielssen was questioned about his opinion expressed that “…Mr Alkanaan’s low intelligence is also likely to be associated with a reduced impulse control and a reduced ability to consider the likely consequences of his actions”. He said:

“Well again it exists on a spectrum and again it depends on the pattern of impairment to intellectual function, you know, yes people who are less intelligent are less able to consider what is going to happen next”.

97. He accepted that one did not have to be intellectually disabled to suffer from the particular disabilities of both reduced impulse control and a reduced ability to consider consequences but said “low intelligence, at the lower end of the spectrum, is often accompanied by the same sorts of stupidities, the same actions without thought of what is going to happen next”.

98. Dr Nielssen agreed that Mr Alkanaan had not been formally diagnosed with the sort of mental illness he had at the time of the commission of the offence but he said that it does not start suddenly. In most cases there was usually a slow onset and people who are using amphetamine and who have that vulnerability often have or are more likely to get drug related psychosis prior to the onset of a chronic psychosis. Confronted with a suggestion to the effect that there was no evidence that Mr Alkanaan suffered from either schizophrenia or the prodromal phase of schizophrenia at the time of the shooting, Dr Nielssen agreed there was no information to support the presence of the syndrome in chronic form but he did not depart from his opinion that it was likely that Mr Alkanaan suffered from schizophrenia. He agreed that there was a possibility that Mr Alkanaan did not suffer from schizophrenia but insisted that the probability was to the contrary.

99. Mr Alkanaan therefore contended that he should have been sentenced both on the basis that he was at the time of the commission of the offence suffering from post-traumatic stress syndrome and was probably schizophrenic.

100. According to the Crown, Mr Alkanaan’s submission is effectively that his Honour misunderstood, and consequently failed to take into account on sentence, that his mental problems were highly relevant and contributed to the commission of the offence. Alternatively, these things should have been treated as an explanation in light of which Mr Alkanaan’s conduct should be assessed.

101. The Crown contended that even if Mr Alkanaan’s contention before his Honour was that his mental illness at the time contributed to his commission of the offence, the evidence did not support it. If Mr Alkanaan’s moral culpability were to be reduced, he would have to demonstrate some causal connection between his mental illness and the relevant offending. The Crown maintained that there was no such connection established in the present case. His Honour made a specific finding that Mr Alkanaan’s intellectual functioning did not have a significant impact upon the assessment of his moral culpability. His Honour, however, did not make a similar specific finding with respect to his mental illness. The Crown contended that this was because there was insufficient evidence available for him to do so.

102. Both sides referred to the well-known passages from the judgment of McClellan CJ at CL in De La Rosa at [177]-[178]. The Crown also drew attention to the passage from the judgment of Simpson J in Aslan v R [2014] NSWCCA 114 at [34] as follows:

“[34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.”

103. Similar observations were made by Beech-Jones J in Ngati v R [2014] NSWCCA 125 at [41]-[47].

104. The Crown contended that his Honour gave proper consideration to Mr Alkanaan’s subjective case, especially his childhood trauma and mental problems and that this ground of appeal was not made out.

105. Mr Alkanaan now argues, contrary to the view formed by his Honour, that his moral culpability for the crime of murder was reduced by reason of his mental condition and that his case is for the same reasons inappropriate for generally deterring others from the commission of a like offence. For the reasons that follow, and notwithstanding what I consider to have been the very helpful submissions of Mr Ramage QC for Mr Alkanaan, I think this ground of appeal should be dismissed.

106. First, in Benitez v R at [36], the following passage appears in the judgment of Simpson J:

“[36] As to the second passage, his Honour’s expressed understanding does not accurately reflect the law. For mental illness or a psychiatric condition to be relevant to sentencing it is not necessary that it be the cause of the commission of the crime. Indeed, authority suggests that it is not necessary that it be a cause of the crime. I refer to the decision of this Court in R v Fahda [1999] NSWCCA 267 at [40] – [48]. There reference was made to a number of authorities of which the following are, on this issue, relevant. In R v Letteri (unreported, NSWCCA, 18 March 1992), Badgery-Parker J said:

‘In each of those cases [which he had, in the preceding paragraph, cited], it appears that the mental illness or retardation was a factor inducing the commission of the offence but that is not a necessary condition of the application of the principle.’”

107. It is instructive in the present context also to recall what McClellan CJ at CL said in De La Rosa at [178]

“[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].”

108. These propositions are not in doubt. However, Simpson J’s comments in Aslan also need to be considered and applied to the circumstances of each particular case. The mere fact of mental illness is not of itself a necessary or sufficient indicator for a more lenient sentence. The principles described by McClellan CJ at CL in De La Rosa are no more than indications of what experience has shown commonly arise in such cases. As Simpson J has said, however, there is no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.

109. Secondly, it is apparent that even though Mr Alkanaan suffered from some mental impairment or disability, his Honour did not consider that his moral culpability was thereby reduced. A lack of capacity to reason, as an ordinary person might, as to the wrongfulness of his or her conduct “will, in most cases, substantially lessen the offender’s moral culpability for the offence”: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54]. His Honour did not consider this to be such a case. His Honour considered that, even despite his low intelligence and mental illness, Mr Alkanaan had demonstrated an ability to live a relatively normal life. That finding was open on the evidence.

110. Thirdly, it is equally apparent that his Honour did not consider that Mr Alkanaan’s case was an inappropriate vehicle for general deterrence, despite his mental impairment or disability: Muldrock at [53]. On the other hand, his Honour appears to have considered that a custodial sentence would weigh more heavily upon Mr Alkanaan and that the significance of specific deterrence was reduced or eliminated in his case.

111. Fourthly, the effects of Mr Alkanaan’s profound childhood deprivation and exposure to warfare and extreme violence, with the associated ongoing consequences for his mental health, were relevant matters to be considered both in determining his moral culpability for the offending and on the question of whether he was an appropriate vehicle for general deterrence. So, too, was his resort to violence. The extreme level of that violence called for a sentence that recognised the importance of protection of the community from similar offending: R v Bugmy [2012] NSWCCA 223 at [44]–[46]. In Mr Alkanaan’s case, these factors pointed in different directions.

112. His Honour’s conclusion, that deterrence of others should feature in Mr Alkanaan’s sentence, despite his deprived background and the impact of his dreadful experiences upon his mental health, was open to him. His Honour’s conclusion that Mr Alkanaan’s moral culpability was not reduced by reason of his mental illness was in the circumstances of this case also open to him. Each conclusion followed from the nature of Mr Alkanaan’s crime, which involved a shot to Mr Khanafer’s head from a sawn off shotgun, in front of his family, upon the street outside his own home, during the afternoon, and in full view of other members of the community.

113. I would reject this ground of appeal.

Ground 3 – aggravating factors

114. On 25 August 2011, Mr Alkanaan had been placed on a bond for a period of two years arising out of a minor assault that had been dealt with in the Local Court. He had complied with the conditions of this bond until the events of 2 February 2013. At [63] of his remarks on sentence, his Honour said this:

“[63] It is an aggravating factor if an offence is committed while the offender was on conditional liberty in relation to an offence: s 21A(2)(j) Crimes (Sentencing Procedure) Act. Here, the offender was on conditional liberty being the bond which I have described above. I regard this as an aggravating factor of some real significance since it demonstrates that Mr Alkanaan was not deterred from committing this offence by a sentence previously imposed by a court.”

115. Mr Alkanaan submitted that the fact that he was on conditional liberty at the time of the murder was not a factor that was relevant to the assessment of the seriousness of the offence. The two offences were said to be of very different types. The breach of his bond should have been treated as a minor matter of aggravation.

116. At [62] of his remarks on sentence, his Honour considered the other aggravating factors:

“[62] Section 21A(2)(e), s 21A(2)(ea) and s 21A(2)(eb) Crimes (Sentencing Procedure) Act, each identify aggravating factors, namely that the offence was committed in company, in the presence of a child under 18 years of age and in the home of the victim or any other person. Each of these potentially applies here. Mr Toleafoa was present when the offence was committed, having been summoned to attend. Mr Khanafer’s 18 month old child was present in the motor vehicle in the immediate vicinity of the shooting, and the shooting took place immediately in front of Mr Alkanaan’s home in which his mother and siblings lived. In the particular circumstances of this case, where Mr Toleafoa was not involved in the crime, there is no evidence that Mr Khanafer’s 18 month child was aware of what occurred, and the offence took place on the street outside the front of Mr Alkanaan’s home – I do not think that these matters are properly to be regarded as aggravating factors, of any real weight. They can for practical purposes be put to one side.”

117. The Crown emphasised that Mr Alkanaan was in fact the subject of three s 9 bonds imposed on 25 August 2011, one for an assault occasioning actual bodily harm and a further two for two counts of contravening an apprehended domestic violence order. Although it appears that he was never called up for breaches of the bonds, it is apparent from a reading of his criminal record that Mr Alkanaan did offend during the period of the bonds prior to the current offence.

118. On 18 March 2014, he was dealt with in the Parramatta Local Court in relation to offences of drive while under the influence of alcohol or drug, possession of equipment for administering prohibited drugs and use uninsured and unregistered motor vehicle. These offences were committed on 18 October 2012 as was the charge of supplying methylamphetamine for which he was sentenced to imprisonment in the Penrith District Court on 3 November 2014.

119. The Crown submitted that whilst the assault that occasioned the actual bodily harm was not so serious that it warranted a sentence of imprisonment, it was still an offence of violence and not offending of a “totally different type”.

120. The authorities also make it clear that the breach of conditional liberty is a matter that should be taken into account. In R v Cicekdag (2004) 150 A Crim R 299; [2004] NSWCCA 357 at [7], Grove J said:

“[7] The conditional liberty of a person subject to parole, bail or recognizance is different in the procedures to be implemented to effect the consequences of breach or failure to comply with requirements, but the reasons that the commission of an offence whilst subject to any form of conditional liberty (including community service order) as a matter of aggravation are constant. At the very least, there is an abuse of the freedom granted by taking the opportunity to commit further crime: R v Richards (1981) 2 NSWLR 464 and, insofar as the non custodial penalty provided an opportunity for rehabilitation, the subsequent offence demonstrates failure and the undermining of a previously implicit expectation of such rehabilitation: R v Vranic unreported NSWCCA 7 May 1991.”

121. The commission of an offence whilst on conditional liberty is not a circumstance relevant to objective seriousness, but it is an aggravating factor: Chehab v R [2015] NSWCCA 44 at [32]. Nothing in the remarks on sentence would suggest that the sentencing judge had regard to the breach of conditional liberty in his assessment of the seriousness of the offence or to increase the appropriate range under consideration. Rather, his Honour went on to refer to the issue specifically in the limited context of personal deterrence.

122. The weight to be given to Mr Alkanaan’s commission of the offence whilst on conditional liberty was a relevant “evaluative and discretionary element”: Batty v R [2016] NSWCCA 121 at [64]. It was within his Honour’s discretion to find that factor of “some real significance”.

123. As Basten JA observed in Lee v R [2011] NSWCCA 169 in the context of considering an argument about parity and whether limited weight should be given to the fact that a co-offender committed the offence whilst on conditional liberty at [41]:

“[41] It may be that the breach would have been more serious if the offences for which he was on conditional liberty were similar to those committed in the present case, but the mere fact of conditional liberty is, as the sentencing judge noted, a significant factor of aggravation.”

124. His Honour said this at [96]:

“[96] A conviction for murder warrants a substantial sentence because the demands of punishment and the deterrence of the broader community against similar conduct are of significant importance. In Mr Alkanaan’s case, because of the fact that the offence was committed whilst he was on a good behaviour bond for a serious personal violence offence, attention must necessarily be paid to specific or personal deterrence. That attention is tempered by his personal history and circumstances.”

125. It is apparent that his Honour moderated the significance of this aggravating factor because of the subjective features in the exercise of his instinctive synthesis.

126. This ground of appeal effectively revolves around the words “an aggravating factor of some real significance” used by his Honour to describe his view of the breach of Mr Alkanaan’s bond. The question must be whether in all of the circumstances it was open to his Honour to have formed that view. As always in such cases, the question is not to be answered by reference to the fact or the possibility that others may have a different view, but whether the view formed by his Honour was available to him in the circumstances, having regard to all of the evidence.

127. Mr Alkanaan does not contend that his Honour fell into some identifiable House v The King error. He has been content simply to assert that at most his breach of bond should have been counted as a very minor matter of aggravation. That is no more and no less than a contention that his Honour should have come to a different conclusion, not a demonstration that he fell into error in arriving at his conclusion. If his Honour’s view that the breach was an aggravating feature of some real significance cannot be substantively impugned, as opposed to being criticised, this ground of appeal must fail.

128. My reading of what his Honour said at [62] of his remarks on sentence suggests that the aggravating features that he there identified, whether correctly or incorrectly having regard to Mr Alkanaan’s submissions, played no part in the sentence that he imposed.

129. I would reject this ground of appeal.

Ground 4 – remorse

130. At [67] in his remarks on sentence, his Honour dealt with the question of Mr Alkanaan’s remorse:

“[67] If an offender has shown remorse for the offence, then that can be taken into account as a mitigating factor. Here, initially, there was no remorse. On the contrary, Mr Alkanaan’s reaction to being arrested was to lie about his involvement, and to attempt to secure through the perpetration of another crime, his freedom. Mr Alkanaan’s evidence of his regret for his actions, even if accepted, falls far short of providing evidence that he accepted responsibility for, and acknowledged the consequences of, his actions. I do not find that he has shown any remorse.”

131. Mr Alkanaan submitted that he had shown remorse, inasmuch as he did not contest the fact that he shot Mr Khanafer, and by reason of the evidence that he gave at his trial. An example of the latter is the following extract from Mr Alkanaan’s evidence:

“I’m not innocent and I’ll never forgive myself for it. The same with his family…I can’t even look them straight…I can’t sleep for the last year, two bit years…I know I’m responsible. I know I’m responsible for it.”

132. In a pre-sentence report dated 24 April 2015, Mr Mahmoud Elsayed, a Community Corrections Officer, reported that when asked about his attitude to the commission of the offence, Mr Alkanaan indicated that “he will regret his actions for the rest of his life”. Mr Alkanaan submitted that in these circumstances, the absence of any contrition at the time of or shortly after the commission of the offence should not have led his Honour to ignore either the sworn evidence he gave or the report to the author of the pre-sentence report, without making a finding that it was not genuine.

133. The Crown case that Mr Alkanaan shot Mr Khanafer was a strong one. The fact that he did not dispute shooting Mr Khanafer in those circumstances does not demonstrate remorse. The strength of the Crown case is a relevant consideration in relation to the evaluation of remorse: R v Sutton [2004] NSWCCA 225 at [12]. It is relevant to consider that Mr Alkanaan did not plead guilty.

134. A sentencing judge is not bound to accept assertions by an offender that he or she is remorseful, even when provided under oath: Alvares v R; Farache v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at [65]. In the present case, his Honour regarded Mr Alkanaan as a “thoroughly unpersuasive witness”. It was open to his Honour to reject his evidence of remorse as well.

135. Moreover, his Honour was entitled to have regard to Mr Alkanaan’s post-offending conduct in his assessment of his later assertions of contrition and remorse. In the present case, Mr Alkanaan attempted to flee the jurisdiction, lied to the police in his ERISP and admittedly conspired to influence Mrs Khanafer, an eye witness to what occurred.

136. The genuineness of evidence of remorse is a question of fact in respect of which a sentencing judge has a wide discretion. It is not something with which an appellate court would quickly interfere unless error of the kind identified in House v The King was apparent. No such error has been demonstrated here.

137. I would reject this ground of appeal.

Ground 5 – special circumstances

138. At [98] in his remarks on sentence, his Honour declined to make a finding of special circumstances, saying “the usual period of parole will be adequate to assist Mr Alkanaan to reintegrate into the community at the completion of his non-parole period”. Mr Alkanaan challenges this conclusion upon the basis that his Honour should not have limited the issue to a question only of re-integration, but that he should have more widely taken account of Mr Alkanaan’s mental health issues as relevant to the question of special circumstances.

139. In my opinion, that submission should be rejected. First, his Honour’s conclusion in the particular circumstances of this case appears unexceptionable. Secondly, his Honour’s decision is not one with which this Court should lightly interfere, especially having regard to what was said in Purtill v R [2016] NSWCCA 80 at [45] as follows:

“[45] Ultimately, the degree or extent of any adjustment of the ‘statutory ratio’ is a matter for the discretion of the sentencing judge – R v Cramp at [31]; Trad v R [2009] NSWCCA 56 at [33]. The presence of circumstances which are capable of constituting special circumstances does not compel a court to make such a finding and reduce the non-parole period: R v Fidow at [22]. So wide is this discretion that a finding of special circumstances does not compel a variation in the non-parole period: R v CM [2013] NSWCCA 341 per R A Hulme J at [39].”

140. I would reject this ground of appeal

Ground 6 – manifest excess

141. Mr Alkanaan submitted that the sentence imposed upon him was manifestly excessive for a number of reasons. First, having regard to sentencing statistics referred to in the Crown submissions and relied upon by the parties which established that the mid-point for murder after a plea of not guilty was a head sentence of 24 years with a non-parole period of 18 years. Secondly, with the exception of cases involving planning and significantly higher criminality, Mr Alkanaan’s sentence was beyond the statistical median. Thirdly, no reduction was made for lessened general deterrence, presumably having regard to Mr Alkanaan’s mental illness and the matters referred to in R v De La Rosa. Finally, his Honour failed properly to apply principles of totality.

142. When considering whether a sentence is manifestly excessive, it is to be recalled that there is no single correct sentence: Makarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 at [27]. Sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different features: Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; [2014] HCA 2 at [34].

143. Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle. This Court may not interfere with a sentence only because it would have exercised its discretion differently: Makarian; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15].

144. In support of this ground the applicant relies upon four particulars. These will be addressed in turn.

145. The utility of referring to previous sentencing judgments was considered by the High Court of Australia in Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [53]-[54] and Barbaro v The Queen at [40]-[41] where French CJ, Hayne, Kiefel and Bell JJ said:

“[40] The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

[41] As the plurality pointed out in Hili v R, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.”

146. Divergence from the statistical median for offences of a like kind does not of itself necessarily bespeak error. This must be so if only for the logical reason that the very concept of a median sentence anticipates the existence of sentences that are both longer and shorter.

147. With respect to the issue of deterrence Mr Alkanaan appears to contend that whilst his Honour made a finding that there was a reduced need for personal deterrence, the sentence he imposed demonstrates that there was in fact either no reduction, or only a minimal reduction of the sentence as a consequence of that finding.

148. The Crown contended that no such conclusion was open from the sentence imposed. Whilst his Honour determined in Mr Alkanaan’s favour that his mental health problems moderated the need for specific deterrence, his Honour was also very conscious of the need for the sentence imposed to import a significant element of punishment, denunciation and general deterrence.

149. In this regard his Honour correctly noted: “A conviction for murder warrants a substantial sentence because the demands of punishment and the deterrence of the broader community against similar conduct are of significant importance” and “The use of guns to settle personal differences is conduct which is to be firmly denounced and deterred”.

150. On the question of totality, his Honour identified the common law principle as one which he should apply in sentencing the applicant: see [19(c)] of his remarks on sentence. Further, the commencement date imposed for the first sentence in respect of the conspiracy (8 November 2013) was nine months into the eighteen month non-parole period of the sentence that had previously been imposed for a drug supply offence. It was clearly open in his Honour’s discretion to commence that sentence when he did.

151. Further, the sentence for the murder commenced 9 months into the 1 year and 10 months fixed term for the conspiracy offence. Counsel for Mr Alkanaan on sentence accepted that there should have been a small accumulation based on the commission of the conspiracy offence.

152. It is apparent that his Honour in the present case had careful regard to the principle of totality in the structure of the sentences.

153. Mr Alkanaan’s submission that the sentence imposed is manifestly excessive in light of the objective seriousness of the offending depends upon his submission that this Court ought to take a different view of the objective seriousness of his conduct. In the absence of demonstrated House v The King error it is not for this Court to substitute its view as to the objective seriousness of the offence for that of the sentencing judge: R v KB; R v JL; R v RJB [2011] NSWCCA 190 at [51] per Bathurst CJ referring to the principles in Mulato v R [2006] NSWCCA 282.

154. As his Honour observed, the murder of Mr Khanafer was a “senseless, brutal and wholly unnecessary killing”. His shooting at close range in the head made this use of a weapon particularly violent. It was committed in the early afternoon on a Saturday when other persons were in the street and Mr Khanafer’s partner and his 18 month old child were in a nearby car. Notions of deterrence, denunciation and punishment needed to be strongly reflected in any sentence imposed for such grave offending.

155. Particularly when regard is had to the statutory guideposts provided by the legislature, the maximum penalty of life imprisonment and a standard non-parole period of 20 years for an offence of murder in the mid-range of objective seriousness, it cannot be said that a sentence of 28 years with a non-parole period of 21 years is unreasonable or plainly unjust.

156. I would reject this ground of appeal.

Conclusion

157. I consider that leave to appeal should be granted but that the appeal should be dismissed.

158. SCHMIDT J: I agree with Harrison J.

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Decision last updated: 11 April 2017