Danishyar v The King; R v Danishyar

[2023] NSWCCA 300

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Danishyar v R; R v Danishyar [2023] NSWCCA 300

Hearing dates:

21 April 2023

Date of orders:

29 November 2023

Decision date:

29 November 2023

Before:

Simpson AJA at [1]
Dhanji J at [2]
McNaughton J at [68]

Decision:

The applicant’s proposed appeal against conviction:

(1)   Leave to appeal against conviction is granted; and

(2)   The appeal against conviction is dismissed.

The applicant’s proposed appeal against sentence:

(1)   Leave to appeal against sentence is granted; and

(2)   The appeal against sentence is dismissed.

The Crown’s appeal against sentence:

(1)   Allow the Crown appeal in part.

(2)   In respect of Count 1 of the indictment dated 1 March 2021, that Mirwais Danishyar did murder Pasquale Barbaro at Earlwood on 14 November 2016, quash the sentence imposed on Mirwais Danishyar in the Supreme Court on 17 December 2021, and in lieu thereof, sentence Mirwais Danishyar to a non-parole period of 15 years commencing on 29 November 2016 and expiring on 28 November 2031 and a balance of term of 5 years commencing on 29 November 2031 and expiring on 28 November 2036.

(3)   In respect of Count 2 on the indictment dated 1 March 2021, being that Mirwais Danishyar did assist any one or more of Abuzar Sultani, Joshua Baines and Siar Munshizada, knowing that any one or more of them had committed the murder of Pasquale Barbaro at Earlwood on 14 November 2016, dismiss the Crown appeal, with the effect that Mirwais Danishyar’s sentence of imprisonment for a fixed term of 2 years commencing on 29 November 2016 and expiring on 28 November 2018 is affirmed.

(4) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), Mirwais Danishyar is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are directed to advise him of the implications of those matters to him.

Catchwords:

CRIME – Appeals – Appeal against conviction – accessorial liability – applicant convicted of accessory before the fact to murder by shooting – whether impermissible reliance by the Crown on an alternative path to guilt on the basis of knowledge of an unidentified act committed with the intention of causing grievous bodily harm of an unidentified kind – whether trial judge’s instructions gave rise to error of law – whether knowledge of the type of offence in accessorial liability includes knowledge of the manner in which it will be brought about – crown submissions and directions read in proper context–leave granted – appeal against conviction dismissed

CRIME – appeals – appeal against sentence –

murder – accessorial liability – whether the sentencing judge failed to engage with a critical submission advanced on the applicant’s behalf about the applicant’s knowledge of the principals’ intention – leave to appeal granted – appeal dismissed

CRIME – appeals – Crown appeal against sentence – murder – accessorial liability – whether the sentence imposed for murder is manifestly inadequate – whether the sentencing judge erred in failing to accumulate the sentence imposed in relation to the accessory after the fact of murder count to any extent – sentence imposed for murder was manifestly inadequate – respondent resentenced

Legislation Cited:

Crimes Act 1900 (NSW), ss 19A, 346, 349, 351, 351B

Criminal Appeal Act 1912 (NSW) s 5(1)

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A

Cases Cited:

Aoun v R [2007] NSWCCA 292

Blundell v R (2019) 279 A Crim R 302; [2019] NSWCCA 3

Bruce v Williams (1989) 46 A Crim R 122

Bugmyv The Queen (2013) 249 CLR 571; [2013] HCA 37

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Cliff v R [2023] NSWCCA 15

CMB v Attorney-General forthe State ofNew South Wales (2015) 256 CLR 346; [2015] HCA 9

Day v SAS Trustee Corporation [2021] NSWCA 71

Director of Public Prosecutions (Northern Ireland) v Maxwell [1978] 3 All ER 1140

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29

Greenv The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jaghbir v R [2023] NSWCCA 175

Johnson v Youden [1950] 1 KB 544

R v Ancutta (1990) 49 A Crim R 307

R v Batak (No 5) [2022] NSWSC 1217

R v FF [2023] NSWCCA 186

R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451

R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587

R v Lembke [2020] NSWCCA 293

R v Russell [1933] VLR 59

R v Spiteri-Ahern (No 11) [2017] NSWSC 1820

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

The Queen v Chai (2002) 76 ALJR 628; [2002] HCA 12

Texts Cited:

JW Cecil Turner, Russell on Crime (12th ed, 1964)

Category:

Principal judgment

Parties:

Mirwais Danishyar (Applicant on conviction appeal and his sentence appeal/Respondent on Crown sentence appeal)

Rex (Respondent on conviction appeal and applicant’s sentence appeal/Appellant on Crown sentence appeal)

Representation:

Counsel:
A Francis (Applicant on conviction appeal and his sentence appeal/Respondent on Crown sentence appeal)

G Newton SC (Respondent on conviction appeal and the applicant’s sentence appeal/Appellant on sentence appeal)

Solicitors:
Fahmy Lawyers (Applicant on conviction appeal and his sentence appeal/Respondent on Crown sentence appeal)

Solicitor for Public Prosecutions (NSW) (Respondent on conviction appeal and the applicant’s sentence appeal/Appellant on sentence appeal)

File Number(s):

2016/00358151

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Mr Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654

Date of Decision:

17 December 2021

Before:

Fagan J

File Number(s):

2016/00358151

Decision Under Appeal

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Mirwais Danishyar, was found guilty by a jury of the offences of murder, on the basis he was an accessory before the fact, and accessory after the fact to murder. For the offence of murder, the applicant was sentenced by Fagan J to 15 years imprisonment with a non-parole period of 11 years. For the accessory after the fact offence, he was sentenced to imprisonment for a fixed term of 2 years, to be served wholly concurrently with the murder sentence.

The murder itself was a cold blooded execution-type shooting. The Crown case was that Abuzar Sultani was party to a joint criminal enterprise with Siar Munshizada and Joshua Donald Baines to murder the deceased and Mr Sultani did, in fact, murder the deceased by firing multiple shots with an intent to kill or cause grievous bodily harm, and which thereby caused or significantly contributed to death.

On the Crown case the applicant’s role was to drive with the principal offenders to a location where a second car, intended to be used in the commission of the offence, was located. The principal offenders drove that second car to a location where they waited for the victim and then carried out the murder. While this was happening the applicant drove the first car around nearby suburbs and maintained contact with the principal offenders. Following the murder of the deceased by the principals, the applicant was directed to drive to a street running alongside a park where the car used in the murder was burned. The applicant picked up the three principal offenders and drove them to a different location, following which clothing that had been worn during the shooting was removed and disposed of.

The applicant appealed his conviction for murder and his sentence. The Crown also appealed against the sentence imposed.

As to the conviction appeal

In the conviction appeal, the applicant advanced two grounds, first, that the trial judge’s directions with respect to the state of mind to be proved gave rise to an error of law and occasioned a substantial miscarriage of justice, and, second, that the way the Crown case was presented, left open the possibility of the applicant being convicted on the basis of a mental state which was insufficient to prove his guilt of the offence. The applicant submitted the directions impermissibly allowed for conviction on the basis of an intention to do grievous bodily harm of an “unidentified kind” by an “unidentified act”.

In relation to conviction appeal, the Court held, per Dhanji J (Simpson AJA and McNaughton J agreeing), granting leave but dismissing the appeal:

1. The question of whether liability of an accessory before the fact requires knowledge of the manner in which the offence will be brought about discussed: at [18]-[32]. In the circumstances of this case, it was neither necessary or appropriate to resolve the question: at [33].

Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29; Johnson v Youden [1950] 1 KB 544; R v Ancutta (1990) 49 A Crim R 307; Jaghbir v R [2023] NSWCCA 175; Bruce v Williams (1989) 46 A Crim R 122; R v Spiteri-Ahern (No 11) [2017] NSWSC 1820; R v Russell [1933] VLR 59; Director of Public Prosecutions (Northern Ireland) v Maxwell [1978] 3 All ER 1140, considered.

2. A single phrase in the directions to the jury may be taken out of context. For this reason, “the effect of the summing up must be determined by considering the written and oral directions taken as a whole and in the context of the conduct of the trial”: at [36]-[37].

Beattie v R [2021] NSWCCA 291; Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63; Cliff v R [2023] NSWCCA 15, applied.

3. There was no alternative case based on the applicant’s belief of Mr Sultani’s intention to inflict grievous bodily harm of an unidentified kind through an unidentified act. Read as a whole, the Crown case, as put to the jury in closing, was that the applicant knew that the deceased was to be killed, or, to the extent that any plan may have encompassed an intention to inflict grievous bodily harm, it was part of essentially the same enterprise, namely that the deceased would be shot: at [53], [65].

4. Likewise, the written and oral directions, read as a whole, did not leave open any possibility of conviction based on some enterprise different to one involving an intention to inflict at least grievous bodily harm by shooting the deceased: at [65].

As to the applicant’s appeal against sentence

The applicant sought leave to appeal against the sentence imposed upon him on the following ground: The sentencing judge failed to engage with a critical submission advanced on the applicant’s behalf namely that there existed a doubt that the applicant knew that the principal or principals intended to kill the deceased as distinct from the infliction of grievous bodily harm.

In relation to the applicant’s appeal against sentence, the Court held, per McNaughton J (Simpson AJA and Dhanji J agreeing), granting leave to appeal but dismissing the appeal:

5. The sentencing remarks dealt with four offenders and three murders following several separate trials and sentence hearings. It would not have been efficacious to set out painstaking reasons for every finding. It is appropriate to look at the remarks as a whole, in their full context, including the issues in the trial on which they were largely based: at [105].

6. When viewed in the context in which the issue arose at trial, and the manner in which the sentencing judge considered carefully both the direct and circumstantial evidence against the applicant, it is clear that the sentencing judge necessarily engaged with the so-called “critical submission” advanced on the applicant’s behalf at sentence. The reasoning process was clear, sound, and adequate: at [109].

As to the Crown’s appeal against sentence

The Crown appealed against the sentence imposed on Mr Danishyar (“the respondent” on the Crown appeal) on the basis that the sentence pronounced is manifestly inadequate (Ground 1) and the sentencing judge erred in failing to accumulate the sentence imposed in relation to Count 2 to any extent (Ground 2).

In relation to the Crown appeal against sentence, the Court held, per McNaughton J (Simpson AJA and Dhanji J agreeing), allowing Ground 1, but dismissing Ground 2, quashing the sentence and resentencing the respondent on Count 1:

7. Ground 1 of the Crown appeal is directed to the sentence imposed with respect to the murder count (Count 1), albeit not specifically pleaded that way: at [112], [136].

8. The large disparity between the sentence imposed upon the respondent’s co-offender, Mr Baines, when used as a comparable sentence, advances but does not establish the Crown’s complaint of manifest inadequacy: at [139]-[140].

R v FF [2023] NSWCCA 186; R v Lembke [2020] NSWCCA 293, cited.

9. The combination of the maximum penalty for the offence (life imprisonment), the critical role of the respondent in the gravely serious criminality, his knowledge of the intention to kill the deceased, the unavailability of any discount on sentence flowing from his plea of not guilty, his lack of a compelling subjective case, his lack of remorse and his poor prospects of rehabilitation, combine such that the sentence imposed upon the respondent is manifestly inadequate, especially given that the sentence imposed for Count 2 was fully concurrent: at [137]-[138], [141].

Aoun v R [2007] NSWCCA 292; R v Batak (No 5) [2022] NSWSC 1217, cited.

10. Having found the sentence for Count 1 inadequate, the consideration of Ground 2, which invites a determination of the appropriateness of concurrency of the sentence for Count 2 with the sentence now found to be inadequate, becomes academic and falls away: at [145].

JUDGMENT

Introduction

1. SIMPSON AJA: I have had the advantage of reading in draft the judgments of Dhanji J and McNaughton J. For the reasons given by Dhanji J, I agree that the appeal against conviction should be dismissed. For the reasons given by McNaughton J, I agree that the application for leave to appeal against sentence should be dismissed, and that the Crown appeal against sentence should be upheld. I agree with the sentence proposed by her Honour.

2. DHANJI J:    Mirwais Danishyar (the applicant) was convicted after a trial by jury of the offences of murder and accessory after the fact to murder. On 17 December 2021, he was sentenced by Fagan J. For the offence of murder, he was sentenced to imprisonment for a non-parole period of 11 years commencing on 29 November 2016 and expiring on 28 November 2027 and a balance of term of 4 years commencing on 29 November 2027 and expiring on 28 November 2031. For the accessory offence, he was sentenced to imprisonment for a fixed term of two years, to be served wholly concurrently with the murder sentence. The applicant challenges his conviction for the offence of murder, which was count 1 on the indictment.

3. The applicant’s liability for murder was based on him being an accessory before the fact to the offence. His grounds challenge the directions of the trial judge with respect to the state of mind to be proved for him to be found guilty of murder on this basis. He also challenges the manner in which the Crown case was presented which, on his argument, left open the possibility of him being convicted on the basis of a mental state which was insufficient to prove his guilt of the offence. For the reasons given below, I am of the view that the applicant’s grounds must fail and the appeal against conviction must be dismissed.

The indictment

4. The applicant was charged on an indictment that he “on 14 November 2016, at Earlwood in the State of New South Wales, did murder Pasquale Barbaro”. He was additionally charged, as count 2 on the indictment, with an offence that he did, on the same date, “knowing that any one or more of Abuzar Sultani, Joshua Baines and Siar Munshizada, to have committed (sic) the serious indictable offence of murder, namely of Pasquale Barbaro at Earlwood on 14 November 2016, did assist any one or more of Abuzar Sultani, Joshua Baines and Siar Munshizada”.

5. As can be seen, the indictment charged the applicant with murder and then additionally charged him with being an accessory after the fact to the same murder. No issue has been raised with respect to the liability of the applicant for a crime and his liability as an accessory after the fact to the same crime. The justification for the accessory after the fact charge appears to be sourced in the circumstance that the applicant’s liability for murder was alleged on the basis of him being an accessory before the fact to the offence of murder committed by Abuzar Sultani. Thus, distinct acts of the applicant were relied upon to establish his liability as an accessory before the fact to murder and his liability as an accessory after the fact to murder. In the absence of challenge, it is unnecessary to further consider this issue.

A brief overview of the Crown case

6. The murder itself was a cold blooded, execution-type shooting. The Crown case was that Mr Sultani was a party to a joint enterprise with Siar Munshizada and Joshua Donald Baines to murder the deceased and that Mr Sultani did, in fact, murder the deceased by firing multiple shots with an intent to kill or cause grievous bodily harm, and which thereby caused or significantly contributed to death. The applicant’s alleged liability was thus derivative to that of Mr Sultani. The applicant’s role was to accompany the principal offenders (Mr Sultani, Mr Munshizada, and Mr Baines) in Mr Sultani’s Subaru WRX to a location, at Ring Street, Belmore, at which a car (an Audi Q7), intended to be used in the commission of the offence, was located. The principal offenders then drove the Audi Q7 to a location where the deceased’s vehicle was known to be parked, with the expectation the deceased would, at some time, return to that vehicle. Whilst the principals waited at that location, the applicant drove the Subaru WRX around nearby suburbs within a range of about 8 kilometres, maintaining contact with the principals by way of encrypted messages. After a period of about 1 hour and 30 minutes, the deceased returned to his car, whereupon Mr Munshizada drove the Audi Q7 alongside his car. On the findings of the sentencing judge, Mr Baines fired four shots from the rear of the Audi Q7 through the deceased’s front passenger window. Three of those bullets passed through the deceased torso and “would have been fatal within no more than a minute”. The deceased got out of his car and tried to escape, whereupon Mr Sultani alighted the Audi Q7 and chased the deceased firing one shot, while Mr Munshizada rapidly reversed the Audi Q7 to follow them. The deceased collapsed on the ground some 25 metres from his car, whereupon Mr Sultani fired a further five bullets into the back of his head and neck, two of which inflicted instantly fatal wounds.

7. After killing the deceased, Mr Sultani got back in the Audi Q7, which was then driven a distance of some 9.4 kilometres to a street running alongside a park in Concord, where the vehicle was set alight. The applicant was directed to drive to a street running along the other side of the park, about 100 metres from where the Audi Q7 was destroyed. The three principal offenders then got into the Subaru WRX driven by the applicant and drove to a location in Silverwater. All four were then driven by an unidentified person from that location before returning 13 minutes later, during which time the clothing that had been worn during the shooting was removed and disposed of. Mr Sultani then drove the Subaru WRX with the applicant and the other two offenders as passengers, taking Mr Baines to his residence before returning to the unit shared by Mr Sultani and Mr Munshizada.

8. The essential facts referred to above were not in dispute. What was in issue at trial was whether the Crown had proved beyond reasonable doubt that the acts performed by the applicant were done with the requisite state of mind. Having regard to the limited issues on the appeal, it is unnecessary to provide further detail of the evidence in the Crown case.

The applicant’s position at trial

9. As noted above, in issue was proof of the applicant’s state of mind. It was the defence contention that the evidence did not prove beyond reasonable doubt that the applicant had the requisite knowledge to make him complicit in the offence of murder committed by Mr Sultani. It was his case that while he was involved in a criminal organisation headed by Mr Sultani, he was not a highly ranked member and was largely used as a “gopher”; that is, he performed menial tasks at the direction of Mr Sultani. The applicant argued that Mr Sultani did not share with him more than was necessary in relation to his criminal activities. Thus, while the applicant may have driven the principal offenders to the car used in the murder and picked them up afterwards, he did not necessarily know what they had planned. The applicant also relied on evidence that, as a means of controlling the group, members were sometimes physically disciplined, raising the possibility that a lesser form of violence was planned. Accordingly, on the defence case, it could not be established that the applicant knew he was assisting the shooting that took place, as opposed to, potentially, an assault on the deceased.

The argument on appeal

The grounds of appeal

10. The applicant relied upon two grounds of appeal in the following terms:

“Ground 1:    The trial judge’s instructions gave rise to an error of law and occasioned a substantial risk of a miscarriage of justice.

Ground 2:    The case the Crown set out to prove was flawed in respect of the alternative pathway to guilt comprising liability on the basis of the [applicant’s] knowledge of an unidentified act committed with the intention of causing grievous bodily harm of an unidentified kind.”

Leave to appeal

11. Neither ground of appeal asserts an error of law alone and leave to appeal is required: Criminal Appeal Act 1912 (NSW), s 5(1).

12. Additionally, no issue was taken by counsel for the applicant at trial with the directions now complained of and accordingly, the applicant requires leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to rely on ground 1 of his appeal.

An overview of the applicant’s argument

13. The grounds were argued together and can conveniently be dealt with together.

14. Central to the appeal is the applicant’s complaint that the Crown case was run, and the jury subsequently directed, in a manner which left open a path to conviction based on a state of mind less than that which was required to prove his liability for murder. In short, it was contended that the Crown case and the directions left open the possibility of conviction based on the possibility the applicant contemplated the infliction of grievous bodily harm of an entirely different type to that which was the subject of the joint criminal enterprise to which Mr Sultani was a party. It was submitted that if the applicant contemplated, for example, that Mr Sultani intended to assault the deceased occasioning to him grievous bodily harm but not intending to kill him, while this state of mind would, in the event that death resulted, be sufficient to prove murder against Mr Sultani, it would not, in the circumstances of this case, be sufficient to establish derivative liability on the part of the applicant for what was effectively an assassination by Mr Sultani. That is, it was contended that the type of harm occasioned as a result of the crime that was in fact committed, was of an entirely different type to the harm (at least possibly) contemplated by the applicant.

The impugned direction

15. Central to the applicant’s argument was the written direction given to the jury concerning the mental element of the offence. The direction was as follows:

“Knowledge of the principal offence; intention to encourage or assist

3.   Has the Crown proved beyond reasonable doubt that at the time of the accused performing on the evening of 14 November 2016 either or both of the acts particularised in a and b of question 2:

a   the accused knew

i   that Abuzar Sultani intended that he would during that evening kill Pasquale Barbaro or intentionally inflict grievous bodily harm on him or

ii    that Abuzar Sultani was party to an agreement or understanding with either or both of Siar Munshizada and Joshua Baines that they would during that evening act in concert to kill or to cause grievous bodily harm to Pasquale Barbaro and that Abuzar Sultani intended to be present, ready and willing to assist, when the agreement or understanding was carried out

AND

b   by the act or acts performed by the accused as found in answer to question 2, the accused intentionally encouraged and/or assisted Abuzar Sultani to commit the murder of Pasquale Barbaro.

AND

c   the act or acts performed by the accused as found in answer to question 2 were capable of encouraging and/or assisting Abuzar Sultani to commit the murder of Pasquale Barbaro.

•   If no to any of a or b or c, find the accused not guilty of count 1.

•   If yes to all of a and band c, find the accused guilty of count 1.”

16. The applicant complains with respect to the inclusion of the words “or intentionally inflict grievous bodily harm” in [3](a)(i) and [3](a)(ii) without qualification. The applicant accepted that, as a matter of law, where a principal offender does an act with an intention to kill or occasion grievous bodily harm and death results, liability on the part of an accessory before the fact may be proved on the basis that the accessory assisted or encouraged the principal offender in the doing of that act, and did so knowing that the principal intended to inflict grievous bodily harm. The applicant’s contention was that while such a state of mind may be sufficient, it will not always be the case. It was submitted that what is required is knowledge of the principal’s intention to occasion a particular type of harm. The applicant submitted that the written direction left open the possibility of conviction based on the applicant’s belief that Mr Sultani, himself or as part of a joint criminal enterprise, would inflict grievous bodily harm of an unidentified kind. The applicant additionally complained that the oral directions to the jury reinforced this alternative.

17. The applicant submitted that these directions followed the impermissible reliance by the Crown on an alternative pathway to guilt based on the applicant’s knowledge of an unidentified act of the principal offender, Mr Sultani, done with an intention of causing grievous bodily harm of an unidentified kind (ground 2). The applicant acknowledged that the Crown case was conducted on the basis that the applicant was guilty if he knew that Mr Sultani intended to execute the deceased or participate in a joint criminal enterprise with the intention of bringing about that execution. He submitted that despite this being the Crown case, the Crown prosecutor, in the closing address, proposed the “alternative pathway” by which guilt could be established by making the submission that while it was really the Crown case that the applicant had knowledge of an intended execution, he had, “at the very least”, knowledge that the principals intended the infliction of grievous bodily harm upon the deceased. The applicant submitted that the Crown thereby left open the impermissible pathway to conviction.

Liability as an accessory before the fact

18. Section 346 of the Crimes Act1900 (NSW) provides:

346 Accessories before the fact—how tried and punished

Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not.

19. Section 346, as can be seen, creates liability for an accessory before the fact to “a serious indictable offence”. Liability as an accessory to a minor indictable offence, both before the fact, and at the scene, is provided by s 351 of the Crimes Act, and in relation to summary offences by s 351B of the Crimes Act. While the terminology of both ss 351 and 351B is different, attaching liability to “any person who “aids, abets, counsels or procures” the commission of a minor indictable offence, the provisions operate in the same way as s 346. They do not create substantive offences but are “declaratory of the common law and procedural in nature”: Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29, per Mason J at 490 (in relation s 351 of the Crimes Act). For the purposes of the discussion below, while Giorgianni v The Queen involved s 351 of the Crimes Act, the principles enounced apply equally in the present context.

20. In Giorgianni v The Queen (at 494), Mason J described the following statement of Lord Goddard CJ in Johnson v Youden [1950] 1 KB 544 as the “classic statement of the position”. In that case, Lord Goddard CJ said (at 546-547):

“Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed, because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things, and it turns out that the doing of those things constitutes an offence, the person who is assisting is guilty of aiding and abetting that offence, because to allow him to say, ‘I knew of all those facts but I did not know that an offence was committed,’ would be allowing him to set up ignorance of the law as a defence.

The reason why, in our opinion, the justices were right in dismissing the informations against the first two defendants is that they found, and found on good grounds, that they did not know of the matters which in fact constituted the offence; and, as they did not know of those matters, it follows that they cannot be guilty of aiding and abetting the commission of the offence.”

21. Giorgianniv The Queen was a case involving the liability of an alleged accessory before the fact to offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. The dangerous driving was committed by the principal as a result of him driving the applicant’s truck in circumstances where the brakes of the vehicle were defective. The driving of the truck in that condition was dangerous. This was sufficient to prove the offence of dangerous driving against the principal. The offence being one of strict liability, no mental state was required to be proved by the Crown as against him. There was no issue that the applicant “aided, abetted, counselled or procured” the act of the principal driving the truck, the question being whether this was sufficient to prove the offence. Having extracted the above passage from Johnson v Youden, Mason J (at 495) confirmed that “knowledge of all the essential facts giving rise to the dangerous driving is necessary to constitute commission of the offence on the part of the applicant”. While his Honour went on to say that such knowledge could be established by the deliberate shutting of one’s eyes or a deliberate abstention from obtaining knowledge for fear of the truth, his Honour was, with Gibbs CJ, in the minority on this point, the majority confirming that actual knowledge must be proved.

22. Johnson v Youden concerned the sale of a house for a price in excess of a statutory limit. The excess amount had been paid prior to the sale transaction. A firm of solicitors, of which there were three partners, acted on the sale. All three were charged as accessories before the fact to the sale on the basis of their responsibility for the transaction by which the vendor committed the principal offence, which was an offence of strict liability. Based on the principles set out above, the two solicitors who knew nothing of the excess payment could not be guilty of the offence. The third solicitor, who did know of the excess payment, was guilty.

23. The applicant referred only to Giorgianni v The Queen and Johnson v Youden. However, neither Giorgianni v The Queen nor Johnson v Youden were concerned with the question of whether knowledge of the essential facts giving rise to the offence is necessarily established by knowledge of facts which, as a matter of law, would make out the elements of the offence or whether knowledge of facts establishing the elements and of a similar quality to those of the offence actually committed is required. If it is the former, there is no argument for error in the directions. If it is the latter, it is necessary to consider whether the jury may have been misled.

24. In both Johnson v Youden and Giorgianni v The Queen, the question of the accessory’s state of mind was relatively straightforward. Each concerned knowledge of facts in existence prior to the relevant acts of assistance or encouragement. The acts encouraged, that is, the sale and the driving respectively, completed the offences based on the pre-existing circumstances, that is, the excess payment and the condition of the brakes. (It was not suggested in Giorgianni v The Queen that foresight of the result, that is, death or grievous bodily harm, depending on the particular charge, was required.) In the present case, the knowledge to be proved was knowledge with respect to a future event. That is, that the applicant accompanied the principal offenders to Ring Street in the Subaru WRX and/or undertook to drive the Subaru WRX so as to be proximate to a location where the principal offenders could be collected, and did so with knowledge of a future event, that is, the offence to be committed by Mr Sultani.

25. In Giorgianni v The Queen, Gibbs CJ (at 481) observed that in R v Bainbridge [1960] 1 QB 129, a case of an accessory before the fact, Lord Parker CJ said (at 134) that “there must be not merely suspicion but knowledge that a crime of the type in question was intended …”. Gibbs CJ immediately observed in parentheses that the Court was “not concerned in [Giorgianni v the Queen] with the question of whether knowledge of an intention to commit the type of offence is enough”: see also Wilson, Deane, and Dawson JJ at 505. Gibbs CJ, in the passage just referred to, may have there been referring to a different question. Offences of the same type, differing only in their particulars, are reasonably straightforward. Assistance as an accessory before the fact to a random act of murder (as might, for example, occur as a terrorist act) does not require knowledge on the part of the accessory of the particular person who will be killed. Similarly, assistance as an accessory before the fact to a person knowing they intend to steal a car does not require knowledge of the particular car to be stolen: see R v Ancutta (1990) 49 A Crim R 307 at 312-313. Nor is the accessory before the fact required to know the identity of the principal offender or offenders: Jaghbir v R [2023] NSWCCA 175 at [195]-[197].

26. One further step removed from the question of knowledge of the particulars of the principal offence is whether an intention to commit an offence of the same general type will be sufficient.

27. In Bruce v Williams (1989) 46 A Crim R 122, the respondent was charged with aiding and abetting the principal to drive a motor vehicle while the principal had the high-range prescribed concentration of alcohol in his blood. Priestley JA (with Samuels and Meagher JJA agreeing) held that the actual knowledge which needs to be shown by the accessory need not always be the knowledge of the precise crime, in fact, committed. Rather, it is enough that the accused knew the type of crime in the principal’s contemplation. Priestley JA (with Samuels and Meagher JJA agreeing) found (at 129) that the offence of driving under the influence is very much in the same type and category of the crime of driving with a high range prescribed concentration of alcohol. It was noted (at 129) that “it will be a matter [for] the court’s evaluation from case to case whether the particular crime committed bore such similarity to that of which the accused had knowledge, to fall within [this] rule”: see also R v Spiteri-Ahern (No 11) [2017] NSWSC 1820 at [34], cited by N Adams J in Blundell v R (2019) 279 A Crim R 302; [2019] NSWCCA 3 at [132].

28. In the present context, the applicant raises no issue as to his knowledge of the elements of the crime insofar as there was, at least, proof of knowledge of an intention to cause grievous bodily harm. The issue is whether the knowledge of the type of offence includes knowledge of the manner in which it will be brought about. The authorities discussed above do not directly deal with this question. There are some statements in Giorgianni v The Queen which give support to the applicant’s contention. Gibbs CJ said (at 479-480) that the fact an offence is one of strict liability:

“… does not mean that a person can aid, abet, counsel or procure the commission of an offence of strict liability without having an intention to do so formed in the light of knowledge of the facts. The very words used in s. 351, and the synonyms which express their meanings - e.g. help, encourage, advise, persuade, induce, bring about by effort - indicate that a particular state of mind is essential before a person can become liable as a secondary party for the commission of an offence, even if the offence is one of strict liability.

In United States v. Peoni , Judge Learned Hand referred to various statutory and common law definitions of ‘accessories’, by which he meant secondary parties, and, in a passage cited by Bright J. in Lenzi v. Miller, went on to say:

‘It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and [that) they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used - even the most colourless ‘abet’ - carry an implication of purposive attitude towards it.’

In other words, the person charged as a secondary party should in some way be ‘linked in purpose with the person actually committing the crime ...’: R. v. Russell per Cussen A.C.J.” (footnotes omitted)

29. The Chief Justice (at 481) set out the following from JW Cecil Turner, Russell on Crime (12^th ed, 1964), as the “bare minimum” to be proved:

“(a) that he knew that the particular deed was contemplated, and (b) that he approved of or assented to it, and (c) that his attitude in respect of it in fact encouraged the principal offender to perform the deed.”

30. Mason J (at 493) referred to the words “aid, abet, counsel or procure” and observed that “the terms are descriptive of a single concept”. His Honour then adopted the observations of Cussen ACJ in R v Russell [1933] VLR 59 at 67, as referred to by Gibbs CJ, but setting out the passage more fully as follows:

“All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.”

31. The passages set out above, emphasising that the accessory must associate themselves with “the venture” or be “linked in purpose” with the principal, suggest a requirement for knowledge beyond the bare elements of a potential offence. To similar effect, Wilson, Deane, and Dawson JJ (at 500) set out, with approval, the following statement of Viscount Dilhorne in Director of Public Prosecutions (Northern Ireland) v Maxwell [1978] 3 All ER 1140 at 1144:

“… it is clear that a person cannot properly be convicted of aiding and abetting in the commission of acts which he does not know may be or are intended.”

32. To take up the applicant’s point, the use of the word “acts” rather than “crimes” would tend to suggest, in the present context, a need to prove the knowledge of an intended shooting rather than, for example, a bashing.

33. The discussion above does not purport to be exhaustive. Ultimately, in the circumstances of this case, it is neither necessary, nor appropriate, to resolve the question. (I note that, relatively recently, N Adams J in Blundell v R undertook a detailed analysis of liability on what was described (at [6]) as the “infrequently visited shores of accessory before the fact”, however, the issue discussed above did not arise.)

34. In the present case, the Crown, while not explicitly conceding the point, did not engage in the argument as to whether it would have been appropriate in the present case to put the matter to the jury on the basis that it was sufficient to prove that the applicant knew it was Mr Sultani’s intention to inflict grievous bodily harm by any means including potentially bashing rather than shooting. The Crown’s position was that when the directions were read fairly and in context they could not have been understood by the jury as allowing for this possibility.

35. In light of the way in which the argument was framed, it is necessary to determine whether the directions left open, as contended by the applicant, a forbidden path of reasoning.

Has the applicant established a miscarriage of justice

The written directions

36. The relevant paragraphs of the written directions in isolation support the applicant’s case. Additionally, it is important to note that the impugned direction is in the form of a written direction provided to the jury and available to them in the jury room throughout their deliberations. Nonetheless, it is also the case that a single phrase in the directions to a jury “may be misconstrued if taken out of context” and that, for this reason, “the effect of the summing up must be determined by considering the written and oral directions taken as a whole and in the context of the conduct of the trial”: Beattie v R [2021] NSWCCA 291 at [26]; Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 at [68].

37. The approach to be taken to a complaint that a jury was misdirected was considered by Kirk JA in Cliff v R [2023] NSWCCA 15. His Honour said, (at [10]-[14] and [16]):

“10   A trial judge is obliged to give oral directions to the jury: Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [65]. The trial judge may also give directions of law in writing if ‘the judge … considers that it is appropriate to do so’: Jury Act 1977 (NSW), s 55B. The practice of providing written directions to assist a jury in a criminal trial is also permitted at common law: Trevascus at [52].

11   In determining whether there has been a misdirection sufficient to amount to a miscarriage of justice, the directions must be viewed in totality. In Green v The Queen (1971) 126 CLR 28 at 34; [1971] HCA 55 the High Court referred to reading the summing up ‘as a whole’. In Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 at [68] this Court, in a joint judgment of Leeming JA, Hall and Bellew JJ, quoted with approval the following summary by the Tasmanian Court of Criminal Appeal in Lin v State of Tasmania (2015) 252 A Crim R 64; [2015] TASCCA 13 at [108]:

[I]t is important for the Court to have regard to the overall impression which the whole summing up would have created in the minds of the jury: R v Ho (2002) 130 A Crim R 545 at [32]; R v Daniel (2010) 207 A Crim R 449 at [25]; R v Thomas [2015] SASCFC 55 at [79]. Small snippets from a summing up should not be wholly divorced from their context; questions of whether particular parts invalidate an otherwise proper summing up raise matters of fact, degree and general impression: R v Calides (1983) 34 SASR 355 at 357.

12   Similarly, in Beattie at [26], this Court said:

It is trite that the effect of the summing up must be determined by considering the written and oral directions taken as a whole and in the context of the conduct of the trial. A single phrase may be misconstrued if taken out of context.

13   As regards the relationship between the oral and written directions, in Hadchiti the Court stated:

[70] … [It] is the commonsense consideration that it would be the written document in the jury room which would decisively frame the jurors’ deliberations, as opposed to the jurors’ recollections of a lengthy oral address. We would respectfully adopt what Simpson J said of the effect of a written direction in Justins v R (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242]:

‘[I]t must also be remembered that a jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions.’ …

[73] … Where a direction to the jury is in part oral and in part written, then to the extent that the written document overlaps with the oral direction, the written document will tend to swamp the force of the oral direction in the jury room. It will do so because of (a) the power of the written word, (b) the fact that it is with the jury at the critical time, and (c) unlike the oral directions, it is apt to be read repeatedly.

14   This type of point has been reiterated subsequently: Obeid at [86]; Morrison v R [2022] NSWCCA 158 at [36]. Hadchiti was a case in which the directions challenged most forcefully by the appellant were those in the written document, rather than those given orally. But the force of these observations does not depend on which variant is criticised.

…

16   The core point made in Hadchiti and related cases is that written directions are important and are likely to be relied upon by the jury. The very reason for providing them is the utility of having a document that can be reviewed and re-reviewed in the jury room. They must therefore be considered as a significant part of the context when examining whether the jury may have been led astray. In some cases, errors or infelicities in a lengthy oral address may not provide sufficient grounds to make out an appeal when viewed against what is contained in the written directions, or vice versa. Whether that is so depends upon the circumstances of the particular case. As this Court indicated in Beattie at [26], the effect of the summing up must be determined by considering the written and oral directions taken as a whole and in the context of the conduct of the trial.”

The effect of the directions in the present case

38. Having regard to the discussion above, it is necessary to place the directions and Crown submissions now complained of in their proper context.

The defence contentions

39. An aspect of the context referred to above is the evidence relied upon by the applicant to support the contention that the Crown had not proved the requisite state of mind against the applicant. As noted above, the defence relied on evidence to suggest that the applicant, as a lowly member of the criminal organisation, would not necessarily have been trusted with the knowledge that Mr Sultani intended to murder the deceased and that, having regard to the use of physical discipline within the criminal organisation, an act of violence other than shooting was not foreclosed as a reasonable possibility. The defence case took on significance on the appeal in that it provided for the possibility that references to an intention to do grievous bodily harm did not necessarily or automatically attach themselves to the shooting.

40. The potential for the defence case to have raised (or to have persuaded the jury that the Crown had not excluded) the possibility that the applicant may have believed some unspecified form of grievous bodily harm would be occasioned to the deceased is of no concern unless the Crown case or the summing up left this open as a potential path to conviction. The significance of the defence contentions to the points argued on appeal was, to my mind, overstated, given that it was never suggested that the applicant might be convicted even if the argument put on his behalf was accepted.

The Crown case

41. The Crown, in opening its case to the jury, said:

“The Crown alleges that Mr Danishyar prior to getting into the WRX at Australia Avenue and as I said he set off with Mr Sultani and Mr Munshizada at about 7.45pm that night, the Crown alleges that prior to getting into that WRX that Mr Danishyar knew or was aware that any one or more of Mr Sultani, Mr Munshizada and Mr Baines were going to shoot Pasquale Barbaro with an intention to kill or at the very least with an intent to inflict grievous bodily harm. But the Crown says primarily he knew or was aware there was an intention to kill.

Whilst the Crown alleges that Mr Danishyar prior to getting into the WRX at Australia Avenue knew or was aware of this. If at the end of the trial you are not satisfied beyond reasonable doubt that prior to getting into the WRX at Australia Avenue Mr Danishyar knew or was aware of this. The Crown says at some point after getting into the WRX and at the latest while he is parked on a street in South Strathfield, Dean Street, prior to the shooting of Mr Barbaro at 9.34pm. Mr Danishyar knew or was aware that any one or more of Mr Sultani, Mr Munshizada and Mr Baines were going to shoot Pasquale Barbaro with an intention to kill or as I said before at the very least with an intent to inflict grievous bodily harm.

The Crown case is that with that knowledge Mr Danishyar intentionally assisted any one or more of Mr Sultani, Mr Munshizada and Mr Baines with the crime that any one or more of those three men went on to complete.

The Crown case is that with that knowledge Mr Danishyar, with that particular knowledge, he intentionally assisted any one or more of Mr Sultani, Mr Munshizada and Mr Baines in that crime by doing any one or more of the following acts.” (emphasis added)

42. Various acts of the applicant were then referred to. It can be seen from this part of the Crown prosecutor’s address that while the Crown made submissions that it was sufficient for the Crown to prove its case if it was proved that the applicant acted “at the very least with an intent to inflict grievous bodily harm”, it was not suggested that this might be established by an intention to do grievous bodily harm of an unspecified kind by an unspecified act. Rather, the opening made plain that the Crown case was that the applicant had knowledge of the intention to shoot the deceased. The primary submission was that the applicant knew that this was to be done with an intention to kill, but it was also noted that it would be sufficient for the Crown to prove the applicant knew the deceased would be shot with an intention to do grievous bodily harm.

43. Reference was made to the evidence it was anticipated would be led in support of the charge. In doing so, the Crown prosecutor tied that evidence to proof of an intention to kill. Thus, the Crown, in referring to recordings of the applicant reciting parts of the Koran while in the Subaru WRX prior to the shooting, told the jury that this was relevant to prove that the applicant “knew that [the deceased] was to be imminently killed”. In a similar vein, the Crown prosecutor told the jury they would hear evidence that subsequent to the murder, the applicant said, in an encrypted message to Mr Sultani, “it is what [it] is bro we know what we were getting into before we do it”. The Crown prosecutor then told the jury that this demonstrated that the applicant knew what was to happen to the deceased.

44. By at least the time of the Crown’s closing address, it was clear that the issue in the trial was proof that the applicant held the requisite mental state such that he was guilty of murder as an accessory before the fact. The first significant point made by the Crown prosecutor in the closing address was to emphasise the applicant’s message to Mr Sultani, stating “we know what we were getting into before we do it”. The Crown prosecutor submitted that, based on this, “the whole purpose for leaving [the unit] was to undertake what I described as a mission to you, but it was a purpose to kill [the deceased]”.

45. In addressing the jury on the elements of the offence, the Crown prosecutor referred to the first element, that is, proof of the offence of murder by the principal, Mr Sultani, as requiring proof that Mr Sultani “fired multiple gunshots at [the deceased] … with intent to kill him or to cause him grievous bodily harm or … thereby causing or significantly contributing to the death of [the deceased]”. It can be seen that while there was reference to the potential for Mr Sultani to have acted with an intention to cause grievous bodily harm, this intention was again tied to the act of shooting the deceased.

46. The Crown prosecutor addressed the second element, the physical acts of the applicant, before turning to the third element, stating:

“Which really brings me to what is, as I have said, the heart of the issue in this trial which is the third component of the essential ingredients for count 1. That is: Has the Crown proved beyond reasonable doubt that at the time of the accused performing on 14 November 2016 any one or more of those acts particularised in that last question, question 2, that the accused knew that Abuzar Sultani, either the accused knew Abuzar Sultani intended he would on that day kill Pasquale Barbaro or intentionally inflict grievous bodily harm on him or the Crown alternatively proved beyond reasonable doubt the time the accused performed the acts or any one or more of the acts particularised he knew that Abuzar Sultani was a party to an agreement or understanding with either or both Mr Munshizada and Mr Baines that they would on that day act in concert, that is Mr Sultani, Mr Munshizada and Mr Baines, to kill Mr Barbaro or to cause grievous bodily harm to him. And that Mr Sultani intended to be present, ready and willing to assist when the agreement or understanding was carried out.” (emphasis added)

47. In speaking of the applicant’s knowledge that Mr Sultani “intended he would on that day kill [the deceased] or intentionally inflict grievous bodily harm on him” or was party to an agreement to do so, the Crown prosecutor’s submission was consistent with what had earlier been said with respect to proof of Mr Sultani’s guilt of murder on the basis of his intention to kill or inflict grievous bodily harm by shooting the deceased, although, read in isolation, it was not tied to a shooting.

48. On the night of the murder, Mr Munshizada drove Mr Sultani’s Subaru WRX from the address in Australia Avenue, Olympic Park, where he resided with Mr Sultani, with Mr Sultani and the applicant as passengers, before collecting Mr Baines on the way to the location of the Audi Q7 parked in Ring Street. The Crown made reference to the applicant being “perfectly aware of what was the intention for setting out from the unit at Australia Avenue that night”; reference was made to messages indicating the intention to burn the Audi Q7; and the prosecutor also told the jury “the Crown says [the applicant] was well aware of what the primary plan that evening was, and that was for Mr Sultani intending, either himself or as part of a joint criminal enterprise, to kill [the deceased]”.

49. Later in the address, reference was again made to the plan to burn the car, the Crown submitting that the applicant “knows full well why they’d be burning a car … because he knew when they set off from the unit, the plan was an intention to kill [the deceased], at the very least inflict grievous bodily harm, but the Crown says really the intention to kill [the deceased]”. The applicant pointed to this passage as leaving open conviction on the basis of an unspecified form of grievous bodily harm. However, in the immediately preceding paragraph, the Crown prosecutor said to the jury that “a decision was made that they are going to torch that car … because [the applicant] knows it is to be used in a murder, that torching the car is likely to eliminate or reduce the chance for forensic evidence to remain in the vehicle”. Additionally, and continuing the submission in relation to the significance of the applicant’s knowledge that the Audi Q7 was to be burnt, the Crown prosecutor submitted that the applicant “knows … that the Audi is to be used in a murder”. The Crown prosecutor further submitted that the applicant was a person who was trusted by Mr Sultani and “full well knew precisely what the purpose of that mission was”, which the Crown later referred to as “a mission to kill [the deceased]”.

50. Later in closing, the Crown made reference to communications prior to the murder, indicating the applicant was cognisant of the plan and that, consequently, the applicant “knows Mr Sultani is setting off with the intention of killing [the deceased]”; “[the applicant] knows at this stage, knows of Mr Sultani’s intentions are that [the deceased] would be killed that evening”; and later “knows they are setting out intending to kill [the deceased]”.

51. Reference was made to evidence of the applicant telling Mr Baines he might need to change his shoes, this indicating that the applicant “knows full well the intentions of Mr Sultani is, that evening, [the deceased] is intended to be killed”. It was submitted that the exchanges at Ring Street, when the transfer to the Audi Q7 took place, indicated the concerns of the group and that the applicant “knew… what the intentions were that evening … including … Mr Sultani’s intentions for [the deceased] to be killed”.

52. Later, the Crown prosecutor again referred to the evidence of the applicant reciting portions of the Koran and submitted that the jury “would conclude the purpose behind [the applicant] reciting these parts or passages is because he himself … was aware that [the deceased] was to be imminently be killed”, a submission repeated at least two further times.

53. It is clear that the thrust of the Crown prosecutor’s submission was that the evidence supported an intention to kill. The applicant did not dispute this, effectively pointing to the prospect of an unspecified act involving an intention to do grievous bodily harm as a lesser alternative to the primary case. I accept that an alternative case based on an intention to inflict a different form of grievous bodily harm, even if slightly put, would (subject to the potential application of the proviso), be no answer to the applicant’s complaint. It can also be accepted, in the context of the passage of the Crown address with respect to which particular complaint was made, that there may be a motivation to eliminate forensic evidence in relation to a crime involving only an intention to inflict grievous bodily harm. However, read in context, the Crown was not, in that passage, introducing some new possibility, but rather maintaining consistency with the proposition that it was sufficient to prove that the applicant knew Mr Sultani intended to inflict at least grievous bodily harm by shooting the deceased. Read as a whole, it is plain that the Crown case, as put to the jury in closing, did not change from the case that was opened. The Crown case was that the applicant knew that the deceased was to be killed, or, to the extent that any plan may have encompassed an intention to inflict grievous bodily harm, it was as part of essentially the same enterprise, namely that the deceased would be shot.

The summing up

54. Consistent with the principle that directions should be formulated to enable a jury to resolve the issues in the particular case (The Queen v Chai (2002) 76 ALJR 628; [2002] HCA 12), his Honour, in introducing the elements document to the jury, told the jury:

“The series of questions that I will give you are formulated by reference to the particular facts of the case, and the way the Crown has presented it, and to state each element that has to be proved in the form of a question specific to this case.”

55. While accepting the significance of written directions as documents that go with the jury into the jury room, it was made clear that the document was not a freestanding document to be interpreted divorced from the facts of the case.

56. Additionally, the document read as a whole did not leave open any realistic possibility of conviction based on some enterprise different to one involving an intention to inflict at least grievous bodily harm by shooting the deceased. The document set out the first issue as proof of the commission of the principal offence by Mr Sultani. Consistent with what had been said by the Crown in the closing address, the document posed the question:

“1.    Has the Crown proved beyond reasonable doubt that on 14 November 2016 at Earlwood in the State of New South Wales Abuzar Sultani

a.    fired multiple gunshots at Pasquale Barbaro

b.   with intent to kill him or to cause him grievous bodily harm

c.   thereby causing or significantly contributing to the death of Pasquale Barbaro.”

57. The potential for liability based on an intention to cause grievous bodily harm was, in relation to this element, based on the firing of multiple gunshots at the deceased. This provided some context for the subsequent part of the written directions directed to the issue of whether in relation to the critical issue of the applicant’s knowledge:

“3. … (a) the [applicant] knew:

i   that Abuzar Sultani intended that he would during that evening kill [the deceased] or intentionally inflict grievous bodily harm on him or

ii    that Abuzar Sultani was party to an agreement or understanding with either or both of Siar Munshizada and Joshua Baines that they would during that evening act in concert to kill or to cause grievous bodily harm to [the deceased] and that Abuzar Sultani intended to be present, ready and willing to assist, when the agreement or understanding was carried out.”

58. Reading the above in context with the terms of the first element suggests that the potential for liability based on an intention to inflict grievous bodily harm is that referred to in that first element, and that is the infliction of grievous bodily harm by shooting.

59. There is a further, and to my mind more significant, aspect of the direction complained of. The direction requires proof that the applicant knew that Mr Sultani would have the requisite state of mind. The expression of the applicant’s state of mind as one of knowledge rather than of belief required him to have been aware of Mr Sultani’s state of mind as a matter that actually existed. The only state of mind of Mr Sultani ever suggested to actually exist was that he intended to kill or to inflict grievous bodily harm by shooting.

60. The applicant submitted that parts of the oral directions to the jury also left open an impermissible pathway to conviction based on the belief that some form of grievous bodily harm would be inflicted by some unspecified act. The trial judge directed the jury as follows:

“To be satisfied that he knew it, really does mean kne, k-n-e-w. The Crown must, to make this out, satisfy you beyond reasonable doubt that the accused knew Sultani intended to commit murder. It is not sufficient if you think the Crown has put up enough proof to show that the accused saw it as a possibility or had a suspicion that that is what they were up to or even was reckless about whether that might be what they were going to do. This element requires that the Crown satisfy you that he actually knew that Sultani intended to commit murder.

This means that the accused must know all of the facts and circumstances that would constitute the commission of murder by Sultani.

Now, that is why it is put in these two alternative forms here. You know that what the Crown is alleging as the way in which Sultani actually did commit the murder was by being the shooter, at least one of the shooters, himself and firing at least two fatal shots himself.

But to be satisfied that at the time of performing his acts of assistance the accused knew all of the facts and circumstances that would constitute the principal offence, it is not necessary that you should be satisfied the accused knew the precise mode by which murder would be committed. You might conclude that the accused knew Sultani was going to commit murder, but he did not know whether Sultani was going to be a shooter or whether Sultani, Baines and Munshizada were agreed upon the enterprise and one or other of them would be the shooter so that Sultani, by being present, would commit murder by reason of his participation in a joint criminal enterprise. It would satisfy this element if the accused knew of all the facts and circumstances which could constitute what Sultani intended to do as him committing murder, albeit it might be done in one mode rather than the other. But one way or the other, you must be satisfied that the accused knew that what was intended was murder, not some other crime.

Now, that element of the case, that knowledge, which is what I call an element of the offence that is charged, that is something that in this case is sought to be proved by the Crown by circumstantial evidence.”

61. The applicant drew attention to the part of the above direction in which his Honour told the jury “it is not necessary that you should be satisfied the [applicant] knew the precise mode by which murder would be committed. You might conclude …”. It was submitted that the use of the word “might” suggested that what followed, that is, the shooting, was not essential to proof of the Crown case. Plainly, however, the reference to “might” and the reference to uncertainty as to the precise mode by which the murder would be committed were to accommodate the alternative formulations by which murder could be established; that is, Mr Sultani was to either himself perform the fatal act, or would be liable for murder on the basis of his participation in a joint criminal enterprise to murder the deceased.

62. The applicant also stressed the use of the word “could” in the phrase “[i]t would satisfy this element if the accused knew of all the facts and circumstances which could constitute what Sultani intended to do as him committing murder” and additionally pointed to the words “[b]ut one way or the other, you must be satisfied that the accused knew that what was intended was murder, not some other crime”. The submission made in relation to these passages was that “firstly, the jury were not directed that it was an essential fact that the [applicant] knew that one or other of the principals intended to shoot the deceased, and, secondly, the [applicant] was not to be taken as possessing knowledge of the crime of ‘murder’ if he did not have knowledge of the essential matters intended by the principal/s”.

63. The applicant’s submission is, with respect, not easy to decipher. While the word “could” in the first extract above might more naturally be replaced with “would”, the meaning conveyed in the context it was used is the same. In theory, if Mr Sultani intended only to inflict grievous bodily harm, then his intention “could” be sufficient for murder, that contingency arising if the victim, in fact, died. (It might also be noted that if he intended to kill he would not be guilty of murder if the intended victim did not die.) In context, there is no real possibility that the jury may have focused on the word “could” to conjure up a path to conviction based on an enterprise that did not involve shooting the deceased. The jury was clearly directed that it was necessary that the Crown prove the applicant knew Mr Sultani intended to commit murder by one mode or another (that is, by his own act or as part of a joint criminal enterprise). Insofar as there was reference to a lesser intention on the part of Mr Sultani to do grievous bodily harm, it did not arise in a vacuum. It was clearly tied to the shooting of the deceased.

64. Any concern that may have arisen is, in any event, expunged by the further directions that were given when his Honour returned to the issue of the applicant’s knowledge the following day. His Honour directed the jury to the relevant part of the written directions and said:

“… as I explained to you yesterday, it is necessary for the Crown to prove, in order to establish that the accused is guilty of this charge, it is necessary to prove that the accused knew that Sultani intended to commit murder, but it is not necessary for the Crown to prove that he knew it would be intended in exactly the simple way that it is described in question 1.

It is sufficient if he knew all the facts and circumstances upon which Sultani would be intending to commit the murder, either by firing the shots himself or by being party to a joint criminal enterprise with the other two and one of them firing it.”

65. Contrary to the applicant’s submissions, there was no alternative case based on the applicant’s belief of Mr Sultani’s intention to inflict grievous bodily harm of an unidentified kind through an unidentified act. The Crown case was not, therefore, flawed in the manner contended. Ground 2 must fail. Nor did the summing up leave open any possibility of conviction based on the applicant’s complicity in an enterprise in which his knowledge was limited to an intention to do grievous bodily harm with no identification of the quality of such harm or the act by which it would be inflicted. I am of the view that ground 1 must also fail.

Conclusion with respect to the conviction appeal

66. Having regard to the nature of the errors complained of, I would grant leave to appeal with respect to both grounds (including pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules with respect to ground 1). However, for the reasons given above, I would reject both proposed grounds of appeal. I propose the following orders:

1. Leave to appeal is granted; and

2. The appeal against conviction is dismissed.

The sentence appeals

67. With respect to the application for leave to appeal, I agree with the orders proposed by McNaughton J for the reasons her Honour gives. With respect to the Crown appeal against sentence, I agree that the appeal should be allowed and also agree with the proposed sentence. I would only add a comment with respect to the principles applicable to Crown appeals as set out by her Honour. To the extent that her Honour’s recitation of the principles suggests that it is not necessary for the Crown to establish manifest inadequacy, on what has generally been described as an “inadequacy appeal”, this is contrary to the conclusion of N Adams J in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [246] (and see also Hoeben CJ at CL at [159], and Button J at [161]). No argument was raised in this case to the effect that the Crown was not required to establish manifest inadequacy. I would require full argument on the subject before accepting that a Crown appeal against sentence could be upheld in the absence of a finding of manifest inadequacy.

68. McNAUGHTON J: I have had the benefit of reading the draft judgment of Dhanji J in relation to the appeal against conviction on Count 1. I agree with the orders Dhanji J proposes, and the reasons for those orders.

69. I now turn to the appeals against sentence, one by the applicant, and the other by the Crown.

70. Before turning to each of the appeals, it is convenient to note the following.

Proceedings on sentence

71. Pursuant to s 19A(1) of the Crimes Act 1900 (NSW) the offence of murder carries a maximum penalty of imprisonment for life. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) a standard non-parole period of imprisonment for 20 years is prescribed. Where, as is here the case, the liability for murder is accessorial (see Crimes Act, s 346) it may be that the standard non-parole period is not strictly applicable: see Aoun v R [2007] NSWCCA 800 at [27] (“Aoun”). There was no challenge to Aoun in this appeal.

72. Pursuant to s 349(1) of the Crimes Act, the offence of accessory after the fact of murder carries a maximum penalty of imprisonment for 25 years.

73. As noted in Dhanji J’s judgment, the applicant was sentenced on the murder charge to imprisonment for 15 years with a non-parole period of 11 years, and on the accessory after the fact charge to a concurrent fixed term of imprisonment for 2 years.

74. In short, the applicant’s acts constituting the murder charge included travelling together with the principal offenders (Mr Abuzar Sultani, Mr Siar Munshizada and Mr Joshua Baines) in Mr Sultani’s Subaru WRX to another car, a stolen Audi Q7, intended to be used in the commission of the murder. The principal offenders drove to the location where the deceased’s vehicle was parked, expecting the deceased to return to that vehicle in due course. Meanwhile, the applicant drove the Subaru WRX around nearby suburbs for about one and a half hours whilst he waited for instructions to meet the principal offenders.

75. The accessory after the fact count was constituted by the applicant acting as a getaway driver for the principal offenders. After the murder had been committed, the applicant, in response to a message sent by Mr Sultani or Mr Baines, drove the WRX to meet the principal offenders at a park in Concord. Mr Munshizada parked the Audi Q7, and he and Mr Sultani set fire to it. The applicant waited in the WRX on a street 100 metres away. Shortly after setting fire to the Audi Q7, the principal offenders entered the WRX, and the applicant drove the group to a location in Silverwater. At that location all four men were driven away by an unidentified person for 13 minutes, during which time the clothing which had been worn during the shooting was removed and disposed of. The four men then left together in the Subaru WRX now driven by Mr Sultani. They returned to the unit shared by Mr Sultani and Mr Munshizada, dropping Mr Baines at his home on the way.

76. The sentence hearing was held on 6 December 2021, as part of a series of sentence hearings also involving the applicant’s three co-offenders. At the applicant’s sentencing hearing, the Crown tendered his New South Wales and Commonwealth criminal histories, his custodial history, police fact sheets and Statements of Agreed Facts relating to other matters, misconduct material from Corrective Services, and an affidavit relating to plea negotiations. A Victim Impact Statement prepared by the deceased’s mother spoke of the profound grief suffered by her and her family, that the deceased’s two children had been left “fatherless” and “damaged beyond repair”, and that the deceased’s brother had taken his own life at 30 years of age because he found the grief too hard to bear.

77. The Crown submitted that Count 1 was well above the mid-range of objective seriousness, and that the applicant knew that the deceased was to be shot with an intention to kill. The Crown submitted that Count 2 was similarly objectively serious. The Crown submitted that the applicant’s moral culpability was “high” for each offence, but “not as extreme” as his three co-offenders (in relation to whom the Crown submitted that life sentences should be imposed). The Crown submitted that the two sentences should be at least partially accumulated and that sentences of imprisonment of “considerable length” should be imposed.

78. The applicant tendered a large volume of material, including a psychological report by forensic psychologist Ms Alison Cullen, a psychiatric report by forensic psychiatrist Dr Stephen Allnutt, two affidavits by the applicant’s solicitor, testimonials from his sister and his uncle, and educational, medical and Justice Health records (including summaries of some of those records). The applicant also tendered a number of comparative cases, together with summaries of those cases. The applicant submitted that the objective gravity of both offences fell towards the lower end of the spectrum for such offences. He also submitted that the evidence did not establish that the applicant was aware of an intention to kill the deceased, as opposed to an intention to inflict grievous bodily harm. The applicant submitted that he was unduly influenced by his co-offenders and was “motivated only by a misguided sense of loyalty to Sultani”. It was submitted that no accumulation of the sentences was required, given the nature of the criminality of each offence.

79. The applicant did not give evidence, relying upon the reports of Ms Cullen and Dr Allnut. Both those witnesses were called and were cross-examined by the Crown.

80. The reports set out that at the time of the offences the applicant was 23 years old, and was 28 years old when he was sentenced. He was born in Australia in 1993 to first generation immigrants from Afghanistan. He had difficulties at home and at school. He was diagnosed with attention deficit hyperactivity disorder (“ADHD”) in 2006, aged 13. He reported being expelled from his last school in 2010 at the age of 17 and a half. Not long after that, through his cousin Mr Munshizada, he met Mr Sultani.

81. He reported that his job in the criminal group led by Mr Sultani began in 2014, “moving products [i.e., drugs] became my job. I had to be available every day”. He claimed that in the two years leading up to the offending he was abusing significant amounts of cocaine, and concurrently abusing Valium, Xanax, Endone and Tramadol “to come down”. At the time of offending, he was living at home with his parents. He had no children and had never had a romantic relationship.

82. Ms Cullen reported that the applicant maintained his innocence. He claimed that he had “no knowledge of Mr Sultani’s intention to harm or kill Pasquale Barbaro, prior to, on the night of or immediately following his murder”. He further claimed that when he drove the WRX to Slough Avenue, where the bags were transferred, he was not aware that a murder had been carried out, nor that Mr Barbaro had been harmed or killed. Similar claims were made to Dr Allnutt. The applicant claimed that when he (eventually) did become aware, he did not tell police because of the threat that Mr Sultani posed.

83. Ms Cullen also reported a claim by the applicant that he had been assaulted during a “strip search gone bad” when he was 16 years old by a male security guard when he was held in Cobham detention centre overnight, following which he experienced symptoms of post-traumatic stress disorder (“PTSD”). He did not wish to provide further details to Ms Cullen.

84. Ms Cullen noted that the applicant described a number of problematic personality traits consistent with a diagnosis of borderline personality disorder. She noted there to be a history of ADHD and oppositional defiant disorder. She opined that it appeared that at the time of the offending the applicant would have satisfied the DSM-5 diagnostic criteria for ADHD, PTSD, recurrent major depressive disorder (moderate), severe amphetamine-type stimulant use disorder, and moderate opioid-related disorder.

85. In Dr Allnut’s opinion, the applicant’s ADHD symptoms, whilst persisting, had probably attenuated with age and the depressive symptoms reported by the applicant raised a diagnosis of either a chronic adjustment disorder or a persistent depressive disorder. Dr Allnutt also recorded the applicant as having a cocaine use disorder currently in remission.

86. During cross-examination Dr Allnutt agreed that the applicant’s custodial history (showing numerous instances of disciplinary infractions) was consistent with anti-social personality traits. As to substance abuse, Dr Allnutt agreed that certain entries from the Justice Health file (only provided to him the previous day) contradicted the applicant’s account to him and painted a different picture, such that he would not diagnose a substance abuse disorder based on that information. He further confirmed that the applicant, at all times, maintained he was innocent of the two charges. Dr Allnutt also indicated that his understanding was that ADHD was treatable within the custodial environment.

115. The Crown points to the conclusion by the sentencing judge that the murder of Mr Barbaro was not a “crime of passion”, and his Honour’s statement that “[t]hat terminology is not apposite to such a coldly premeditated execution”. The Crown also notes his Honour’s finding that by 7:30pm on the night of the deceased’s murder, each of Mr Munshizada, Mr Danishyar (the respondent on the Crown appeal (“the respondent”)) and Mr Baines were,

“aware of Sultani’s intention to kill Mr Barbaro and had agreed to assist in the way that unfolded. From 7:30 pm Munshizada and Danishyar were on notice from Sultani that an opportunity had arisen and that they were to move quickly to take advantage of it”.

(Emphasis added.)

117. His Honour found that the respondent’s participation as a getaway driver was “most important”, without which the “scheme would not work”.

118. The Crown contends that “[t]he respondent was found to have played an integral role in the murder with full knowledge of the fact that the enterprise involved the deliberate and planned cold-blooded execution of another human being”. Accordingly, the objective seriousness is significant, as is the respondent’s moral culpability, even accepting that such culpability was found to be “somewhat” reduced by the influence of his superiors in the group. Further, on any view, the standard non-parole period is demonstrative of “the attitude of the legislature to the offence of which the applicant has been convicted of aiding, and it is to be kept in mind that the maximum penalty for both [offences] is the same”: Aoun at [27].

119. The Crown contends that the offending in Aoun is significantly less serious than the offending in this case. In Aoun, the applicant was found guilty following trial of the offence of accessory before the fact to murder (and not guilty of the offence of accessory after the fact to murder). The sentence of 17 years and 3 months’ imprisonment, with a non-parole period of 13 years was described as a “heavy one” but not manifestly excessive (Aoun at [27]). The assistance offered by the applicant in Aoun was at [16]:

1. The provision of a stolen car with which to carry out the drive-by shooting (involving “breaking and removing a steering column and ignition barrel, and the thorough wiping down of a vehicle using three cans of WD40”); and

2. Advice not to do the shooting in daylight.

120. The applicant declined to get in the car and travel to the shooting and ceased involvement from that time. The applicant was 25 years of age at the time of the offence, had no prior convictions and a strong work history from the age of 15. He was found to be remorseful and unlikely to re-offend, the latter finding reducing the need for personal deterrence.

121. The Crown submits that the offending in the present matter is significantly more serious than the offending in Aoun, as in this matter the respondent’s role was ongoing throughout the commission of the offence and after, and he knew that it was intended that the deceased be killed. His culpability was thus significantly higher than that of Mr Aoun. Moreover, the respondent had a poorer subjective case, all which indicates the sentence of 15 years’ imprisonment in the present case was plainly unjust.

122. It is further submitted by the Crown that nothing in the subjective case of the respondent warranted the degree of leniency shown. His Honour found the respondent had not exhibited remorse, had poor prospects of rehabilitation as well as a significant risk of reoffending. The sentencing judge found that the respondent had not accepted responsibility for his role as an accessory before the fact in the murder of Mr Barbaro.

123. The finding of “somewhat” reduced culpability because of the influence of Mr Sultani and Mr Munshizada was to be viewed along with the “significant risk” that upon the respondent’s release he may make similarly poor choices with respect to his associates. His Honour also made a finding that general and specific deterrence were “important elements” in sentencing the respondent.

124. The sentencing judge found that the conduct of the respondent in relation to both counts was part of a “single criminal transaction”. The Crown submits that the fact that the two offences formed part of a single transaction in which the respondent was continuously involved, being fully aware of the scope and purpose of that transaction, highlights the inadequacy of the sentences imposed. It further submits that,

“notwithstanding the appropriateness of the finding that the respondent’s conduct was part of a single transaction, the act/s of encouragement and/or assistance constituting the respective counts were nonetheless distinct, such that a measure of accumulation was necessary and appropriate”.

125. Count 1 was directed to facilitating the commission of the foundational crime, whereas Count 2 was directed to assisting the offenders to escape detection and apprehension of the foundational crime once it had occurred. The Crown contends that the failure to accumulate Count 2 to any extent, was not justified, especially where the sentence for Count 1 was erroneously lenient.

126. The Crown further contends that whilst acknowledging that the Crown may not invoke principles of parity to justify an increase of a sentence on appeal, it is nonetheless open to the Crown to point to a co-offender’s sentence as an indication of the marked inadequacy of the sentence: R v Lembke [2020] NSWCCA 293 at [56]-[66] (“Lembke”). With that in mind, the Crown points in particular to the sentence of 36 years’ imprisonment with a non-parole period of 27 years imposed upon Mr Baines (and less so to the sentence of life imprisonment imposed upon Mr Sultani and Mr Munshizada), noting especially:

1. The facts were common to all of the offenders, although each had a different role;

2. Although the respondent, unlike his co-offenders, was liable for murder as an accessory before the fact (and also liable as an accessory after the fact), the two offences for which the respondent was found guilty were the same single transaction in which the co-offenders participated (with the respondent, as part of a criminal group);

3. All offenders were found to have had no remorse, no positive prospects for rehabilitation, and a degree of hardship in custody;

4. Both the respondent and Mr Munshizada were “drivers”, notwithstanding Mr Munshizada was present at the scene of the shooting. The Crown however, acknowledged the distinction drawn by the sentencing judge between the culpability of the “getaway car” driver and the “murder vehicle” driver. The Crown further acknowledged that Mr Munshizada was sentenced in the context of his position in the group as a person at “much the same level” as Mr Sultani, and for his involvement in the two previous killings; and the respondent’s culpability was “somewhat reduced” by the influence he was under from Mr Sultani and Mr Munshizada;

5. Mr Baines’ full-term (36 years) was more than double that of the respondent, and his non-parole period (27 years) was almost two and a half times greater than the respondent’s non-parole period of 11 years. Although Mr Baines was involved as one of the shooters, like the respondent, he was not involved in the two previous killings. His culpability was likewise “somewhat reduced” by the influence he was under from Mr Sultani and Mr Munshizada. Whilst the respondent’s subjective case was unremarkable, Mr Baines was subject to Bugmy type factors. Although these factors were not found to be causally connected to the offending, they were generally taken into account. His Honour stated: “In order to sentence Baines justly according to law I will take into account his individual subjective circumstances, including the adversity of his upbringing”.

127. The Crown further contended that this was a “horrific, brazen execution carried out in a public street”. The respondent’s participation was “most important”, and “without a getaway driver the scheme would not work”. He knew the deceased was intended to be killed. That the murder was committed on a suburban street where citizens were frightened by gunfire and its aftermath is a crime of a type which “seriously degrade[s] the peace and security of the community”.

128. The Crown submitted that as the respondent was convicted after trial, he was not entitled to any discount. He had shown no remorse. His subjective case was not such that it moderated the need to impose a substantial sentence in any significant way. The Crown contends that the “need for denunciation, punishment, general deterrence, specific deterrence, and protection of the community would be undermined by allowing the manifestly inadequate sentence imposed in this case to stand”.

129. As to Ground 2, the Crown relies on the matters set out in [124] above. It was not open to his Honour, the Crown argues, to fail to accumulate the sentence imposed in relation to Count 2 to any extent. This is because the sentence for Count 1 could not fully comprehend and reflect the criminality of Count 2: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 (“Cahyadi”).

Respondent’s submissions

130. The respondent contended that the decision in Aoun that the sentence was not manifestly excessive is of no assistance to this Court in an evaluation of the wide discretionary range of penalties available to a judge at first instance. The judgment in Aoun did not enunciate any applicable matter of principle breached by the sentencing judge, nor was it contended by the Crown at sentence to be identifying a relevant range from which the sentencing judge should not depart.

131. It was further submitted by the respondent that the Crown did not identify any House error in respect of Ground 2, and that it was open to his Honour to impose a concurrent sentence in the circumstances of this case. The respondent contended “[w]here a promise of future assistance underpins accessorial liability before the fact, the subsequent commission of that promise does not call for an elevation in penalty, at least not in this case”.

132. The respondent submits that he was,

“not to be sentenced as a participant in a joint criminal enterprise to murder the deceased, that is, he was not indicted for having agreed with the principals to take a step in the commission of the murder. In this sense his liability was quite different and the Crown’s written submissions […] must be understood in this context”.

133. The respondent further contends that it was “not inherent in the jury verdict that there was a meeting of minds that the deceased was to be killed, nor was it inherent in the jury verdict that the [respondent] knew that the deceased was to be killed”. The respondent referred to the reasons set out in the respondent’s appeal against conviction and application for leave to appeal against sentence.

134. Finally, the respondent submits that if this Court is,

“satisfied that the finding that the [respondent] knew of the intention to kill the deceased was open to his Honour (and it is conceded that his Honour did so find) it is evident that this adverse finding was accommodated by the sentencing [j]udge in his evaluation of objective seriousness”.

135. No submission was made by the respondent in relation to the sentence imposed upon Mr Baines.

Consideration of the Crown appeal

136. As noted above, Ground 1 is directed to the sentence imposed with respect to the murder count, albeit not specifically pleaded that way.

137. The maximum penalty for the offence of murder (Count 1) is life imprisonment. The standard non-parole period of 20 years, at the very least, can be viewed as demonstrative of “the attitude of the legislature to the offence of which the applicant has been convicted of aiding, and it is to be kept in mind that the maximum penalty for both [offences] is the same”: Aoun at [27]. See also the helpful discussion of this issue by R A Hulme J in R v Batak (No 5) [2022] NSWSC 1217 at [6]-[19].

138. In my view, given the critical role played by the respondent in what was an execution style killing involving a number of participants, and his involvement in several of the steps designed to minimise detection, it is not clear how his Honour arrived at the sentence he did.

139. As to the stark difference between the respondent’s sentence and that of Mr Baines, whilst it is correct that the Crown cannot rely on a “parity” argument in a Crown appeal, a sentence imposed on a co-offender can be used as a relevant comparable sentence: R v FF [2023] NSWCCA 186 at [65] (Beech-Jones CJ at CL, Fagan J agreeing at [89], R A Hulme AJ agreeing at [90]) (“FF”). Justice Beech-Jones in FF at [64] also referred, with approval, to the following passage from Lembke at [60]-[61] (Garling J, McCallum JA agreeing at [1], Wright J agreeing at [68]):

“The correct way in which a Crown may be able to engage this Court’s attention on appeal to a sentence which it submits is inadequate is to suggest that the sentence imposed on a co-offender provides an indication of the marked inadequacy of the sentence imposed on the respondent to the appeal. This was the way in which Howie J treated the matter in Gu.

However, if the Crown approaches an appeal in that way, it needs to persuade this Court that the facts upon which the respondent to the appeal and the other co-offenders were sentenced were similar, what the comparable roles in the offences were, and why the sentence imposed on the respondent is (by reference to those features) inadequate.”

(Emphasis added.)

140. Pointing out the large disparity between the sentence imposed upon Mr Baines and that of the respondent advances the Crown’s complaint of manifest inadequacy. It does not, however, establish the ground of appeal in its own right.

141. In any event, the combination of the maximum penalty for the offence (life imprisonment), the critical role of the respondent in the gravely serious criminality, his knowledge of the intention to kill the deceased, the unavailability of any discount on sentence flowing from his plea of not guilty, his lack of a compelling subjective case, his lack of remorse and his poor prospects of rehabilitation, combine to persuade me that the sentence imposed upon the respondent was manifestly inadequate. The inadequacy of the sentence is more stark when considering that the sentence imposed by his Honour for Count 2 was fully concurrent.

142. It is acknowledged that the respondent was not a shooter and was not present at the shooting. It is further acknowledged that the respondent’s culpability was somewhat reduced on account of the influence that he came under from Mr Sultani and Mr Munshizada. However, even giving due weight to these matters, as well as all other relevant considerations, the sentence imposed by the sentencing judge simply did not reflect the serious criminality of the respondent’s actions. The respondent played an essential part in facilitating the commission of the foundational crime by making possible the change of vehicles prior to the shooting. He did this whilst knowing that the deceased was to be shot with an intention to kill.

143. Whilst a sentencing judge has a wide discretion, when the above factors are taken into account, and are viewed in light of the maximum penalty (and the standard non-parole period in the way referred to above), in my view the sentence imposed by his Honour for Count 1 falls well below the range of sentences that could justly be imposed in the circumstances of this case.

144. Ground 1 of the Crown appeal is thus made out.

145. Having found the sentence for Count 1 inadequate, the consideration of Ground 2, which invites a determination of the appropriateness of concurrency of the sentence for Count 2 with the sentence now found to be inadequate, becomes academic and falls away. As is apparent from the discussion below in the context of resentence, it suffices to say that the approach to concurrency taken by the learned sentencing judge was not in error, as discussed below when considering resentence. Accordingly, Ground 2 should be dismissed.

Residual discretion

146. Having found Ground 1 made out, it is thus necessary for the Crown to satisfy the Court that it should not exercise its discretion to decline to intervene.

147. In this case, the Crown points to a number of factors militating against the exercise of the residual discretion in the present case. There was no delay in the institution, service or listing of the appeal. The sentence was delivered on Friday 17 December 2021, and the respondent’s solicitor was notified on Wednesday 12 January 2022 that the institution of a Crown appeal was being contemplated. The Notice of Appeal was filed within time on Friday 14 January 2022, and served on the respondent’s solicitor on the same day. The Notice of Appeal was personally served on the respondent in custody on Monday 17 January 2022. The conduct of the Crown before the sentencing judge did not contribute to the error which has been established. Further, the respondent’s release is not imminent, with his non-parole period due to expire on 28 November 2027.

148. The respondent made no submission in relation to the exercise of the residual discretion.

149. In all of the circumstances, I am of the view that the Crown has satisfied the Court that it should not exercise its discretion to decline to intervene. The swift institution of the appeal combined with the success of the appeal, the seriousness of the offending, the acknowledged need for general deterrence, as well as specific deterrence, punishment, denunciation and the protection of the community are such that the Court should intervene to increase the respondent’s sentence to properly reflect those matters. 

Resentence

150. Having found error, it is necessary to exercise the sentencing discretion afresh.  Except to the extent to which it was implicit in the respondent’s appeal against his sentence (which has been rejected) that a finding of an intent to do grievous bodily harm rather than to kill could have been made, the respondent did not take issue with the findings of fact or other conclusions for sentencing purposes of the sentencing judge. I adopt the factual findings of the sentencing judge, as well as his Honour’s findings in relation to the respondent’s subjective case.

151. It can also be observed, as noted by the sentencing judge in the course of the sentencing proceedings, that the respondent’s role as an accessory after the fact (Count 2) “really merges into” the plan as an accessory before (Count 1). The respondent was being sentenced for his participation in a well-planned execution. His role involved him dropping the principals at the vehicle used in the murder and picking them up after the murder. The respondent’s role was in essence a single episode of criminality. So much was acknowledged by the Crown appearing at the sentence hearing. In a sense, the splitting of the respondent’s role into two charges was artificial. As observed in Cahyadi at [27]:

“[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both”.

152. In light of these observations, together with those at [141]-[142] above, it is appropriate to increase the sentence of the respondent for murder to 20 years’ imprisonment. As Ground 2 has been rejected, resentencing does not arise in relation to Count 2. It may be noted in any event that in light of the proposed increase for the sentence for Count 1, and the conduct of the respondent in relation to both counts being part of a “single criminal transaction”, the sentence for the accessory after the fact offence, being a fully concurrent sentence of 2 years, is, in my view, appropriate.

153. I would impose a non-parole period of 15 years.

154. The orders I propose are as follows:

1. Allow the Crown appeal in part.

2. In respect of Count 1 of the indictment dated 1 March 2021, that Mirwais Danishyar did murder Pasquale Barbaro at Earlwood on 14 November 2016, quash the sentence imposed on Mirwais Danishyar in the Supreme Court on 17 December 2021, and in lieu thereof, sentence Mirwais Danishyar to a non-parole period of 15 years commencing on 29 November 2016 and expiring on 28 November 2031 and a balance of term of 5 years commencing on 29 November 2031 and expiring on 28 November 2036.

3. In respect of Count 2 on the indictment dated 1 March 2021, being that Mirwais Danishyar did assist any one or more of Abuzar Sultani, Joshua Baines and Siar Munshizada, knowing that any one or more of them had committed the murder of Pasquale Barbaro at Earlwood on 14 November 2016, dismiss the Crown appeal, with the effect that Mirwais Danishyar’s sentence of imprisonment for a fixed term of 2 years commencing on 29 November 2016 and expiring on 28 November 2018 is affirmed.

4. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), Mirwais Danishyar is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are directed to advise him of the implications of those matters to him.

**********

Decision last updated: 29 November 2023