R v Abdul Zahed

[2024] NSWSC 695

Supreme Court

New South Wales

Medium Neutral Citation:

R v Abdul Zahed [2024] NSWSC 695

Hearing dates:

2, 17 May 2024

Date of orders:

7 June 2024

Decision date:

07 June 2024

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1)   Abdul Kadir Zahed, you are convicted of the offence of being an accessory after the fact to murder.

(2)   I sentence you to a non-parole period of 2 years 6 months, to commence on 15 January 2023, and to expire on 14 July 2025.

(3)   That will be followed by a parole period of 1 year 3 months, to expire on 14 October 2026.

Catchwords:

CRIME – sentencing – accessory after the fact to murder – guilty plea – relevant factors on sentence – objectively less serious example of a serious offence – where no persons convicted of homicide of deceased – extensive criminal history – where much of the offender’s adult life has been spent in custody – offence committed whilst offender on parole – remorse not established on balance – deprived background – difficult childhood and upbringing – history of illicit substance abuse – some evidence of steps taken towards rehabilitation in custody– special circumstances not found – discussion of parity – sentence backdated to reflect measure of concurrence with previously imposed aggregate sentence

Legislation Cited:

Crimes Act 1900 (NSW) s 349

Category:

Sentence

Parties:

Rex
Abdul Kadir Zahed (Offender)

Representation:

Counsel:
K McKay SC with T Lumsden (Crown)
M Thangaraj SC with J Trevallion (Offender)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Zahr Partners (Offender)

File Number(s):

2022/265635

Publication restriction:

Nil

REMARKS ON SENTENCE

Introduction

1. On 6 February 2024, Mr Abdul Zahed (the offender) pleaded guilty to one count on indictment in this Court. It alleged that between 11 December 2014 and 6 February 2024, knowing that the murder of Mr Yousef Assoum (the deceased) had been committed by certain persons on or about 11 December 2014, he afterwards maintained and assisted those persons. From now on I shall refer to the offence concisely as being an accessory after the fact to murder. The matter was stood over for proceedings on sentence on 2 May and 17 May 2024, and it falls to me to sentence the offender for that offence today.

2. A number of aspects of the count can be noted immediately. The first is that it carries a maximum penalty of imprisonment for 25 years, and no standard non-parole period. The second is that the Crown conceded that, despite the temporal breadth of the indictment, the offence was only committed within the much more limited period of 11 December 2014 to 2 January 2015, a period of about three weeks. The third is that the joint position of the parties, which I accept, is that it is an element of the offence that the act or acts in question must have a tendency to assist the murderer to escape justice, not that it or they actually do so to any degree.

3. Aggravating features on sentence, above and beyond the elements of the offence, must be proven by the Crown beyond reasonable doubt. Mitigating features relied upon by the offender need only be proven on the balance of probabilities. Some matters, inevitably, will remain unclear to me.

Objective aspects

4. The objective features of the offending can be shortly stated. Well over nine years ago, between 11:30 PM on 10 December 2014 and a little after midnight the following day, the deceased was detained and violently assaulted inside his own motor vehicle. He was shot and wounded in the leg at close range. He died as a result of severe blood loss from that gunshot wound.

5. Although the offender was not present at the murder when it was committed, he was close by, and not only aware of it very soon after it had happened, but also knew the identity of the perpetrators. One cannot go further in terms of firm findings about how this loss of human life in the most serious circumstances known to law came to occur.

6. Shortly after the shooting, an unidentified male drove the deceased and the offender in the deceased’s car to a location close to a Sydney suburban hospital. Staff became aware of the presence of the two of them, and telephoned emergency services. When the staff approached the two men, the deceased was unconscious, and the offender was shirtless, upset, swearing, shouting that someone should do something, claiming that the deceased was his brother, and begging for help. At that early stage, he lied and said that he lived in the street, heard a noise, came out, and saw the deceased. From that point on, the offender must have appreciated the importance of what he had to say, in terms of protecting the perpetrators. It was noted at the scene that the shirt of the offender had been used in an effort to staunch the bleeding of the deceased, I infer in an attempt to save his life.

7. An ambulance arrived promptly, and the deceased was taken to hospital. Tragically, he was pronounced dead at 12:47 AM on 11 December 2014. A victim impact statement prepared by a family member of the deceased received by me without objection, but for therapeutic purposes only, speaks eloquently of the suffering that his loss has caused; I use it for no purpose beyond recognition of that fact.

8. As one would expect, police attended the scene. The offender chose to speak to them, and knowingly gave a false version of events to them: “They just came out, and they left us here. I was screaming. Wake up, wake up”. The offender did not wish to say more. When threatened with being arrested for concealing a serious indictable offence, he responded “All I’m going to say is they stole my phone and driver’s licence”. This was a further falsehood, provided in order to protect the true perpetrators. He was, in fact, charged that evening with that lesser offence against public justice.

9. A few days later, on 16 December 2014, the offender gave another false version to his parole officer. This included the offender having been “hit in the back of the head”, and regaining consciousness to see “his cousin bleeding”. These things were also said with the necessary mental elements for being an accessory after the fact to murder.

10. Several weeks later, on 4 January 2015, a telephone conversation between the offender and his elder brother, Mr Tarek Zahed, was intercepted and recorded. The offender swore that he would “do 20 years as longs as I know you are living happy”. Three days later, another telephone conversation took place between the two brothers, from which one can readily infer that Mr Tarek Zahed was forcefully instructing the offender what to say to the police about the circumstances of the death of the deceased. It is an agreed fact that, in both conversations, the two men were “conspiring” to mislead police about the circumstances of the murder, and events immediately after it.

11. Finally, on 13 January 2015, the solicitors for the offender wrote to the police enclosing a statement of his of the previous day. In a nutshell, the offender claimed in writing that, on the evening in question, the deceased and his wife visited the family home of the offender. The deceased stayed for a short time, departed, then returned. The two men went for a drive, the offender smoking heroin on the way. On arrival at an unknown house, two or three persons wearing balaclavas appeared. The offender believed that he was struck to the head. He awoke to find the deceased lying next to him, badly injured. The offender applied a tourniquet to the wound on the leg of the deceased, and begged for help from others. Again, almost all of this was knowingly false, communicated to the police with the necessary mental elements.

12. Apart from the deceased attending the home of a member of the family of the offender, namely Mr Tarek Zahed, the rest of the statement was quite false. It is agreed that Mr Tarek Zahed was written out of the events of the entire evening by the offender in order to protect him. I hasten to add at this stage that there was no evidence placed before me that Mr Tarek Zahed was indeed the murderer, or one of them; having said that, implicit in the offender “writing out” his older brother from the events is the fact that Mr Tarek Zahed had something to do with them.

Objective seriousness

13. Speaking generally, I believe that being an accessory after the fact to murder is a serious offence, for the following reasons.

14. First, the maximum penalty of imprisonment for 25 years is an indication by Parliament of its gravity, not least because that maximum penalty is one step below the most severe maximum penalty in this State of life imprisonment without possibility of parole.

15. Secondly, the offence-creating provision at s 349 of the Crimes Act 1900 (NSW) contains an unusually explicit, graded structure whereby Parliament has drawn a clear distinction between being an accessory after the fact to murder, on the one hand, and committing that offence with regard to lesser crimes on the other.

16. Thirdly, by any measure, knowing that a murder has been committed and intentionally doing an act or acts to help the principal offender literally to “get away with murder” must be thought of as very reprehensible conduct.

17. Having said that, the following points are soundly made for the offender about the objective seriousness of this particular example of the offence: that the plea encompasses only acts that had a tendency to deflect the apprehension of the murderers, not acts that produced that outcome; that some of what the offender had to say could only have possessed that tendency very marginally indeed, such as his lies to his parole officer; that in truth one can safely infer that the police did not believe the offender, bearing in mind that they charged him with a public justice offence on the evening, combined with the inherent incredibility of what he was asserting at all stages; that the offence is based in this case on acts, not silence at any stage on the part of the offender; and, finally, that one cannot be satisfied beyond reasonable doubt that, even if the offender had not committed this offence, the murderers would have been apprehended.

18. On the basis of all that: I think that what the offender has done in this case must be seen as a less serious example of a nevertheless serious offence.

Subjective features

19. Turning to subjective matters, I accept and apply the agreed position of the parties that, pursuant to statute, the utilitarian value of the plea of guilty attracts a discount of 5%.

20. As for the related question of remorse, I did not hear from the offender in the witness box, a position that he was perfectly entitled to adopt. I was provided with a handwritten statement from him, tendered without objection by the Crown, along with a psychological report that records expressions of remorse on his part. But the offender has a lengthy criminal record for dishonesty; he has been convicted, of and imprisoned for, a public justice offence in the past; and before me he has accepted by his plea and the agreed facts that he told many lies about something as grave as a murder. Whilst I readily accept that the offender regrets the death of the deceased, and regrets how all of this has turned out, I am not satisfied on balance that he is remorseful for his own criminal actions during those few weeks at the end of 2014.

21. I do accept on balance, however, that this man had a very difficult childhood, which began with his family fleeing the Lebanese Civil War in the 1970s and seeking to make a new life in this country. Regrettably, his home life as a child was unsatisfactory, in that his father had a gambling problem; the offender suffered violence at the hands of his father and elder brother; there was physical conflict between his parents as well; and after reflection I also accept on balance (without needing to speak explicitly now) that the offender in his childhood suffered other grave crimes perpetrated against him, although the exact extent of them is unclear to me.

22. As one might expect from that regrettable background, the offender did not complete high school, commenced using alcohol and cannabis at the age of 13 years, and did not take long to move on to the damage done by heroin and amphetamines.

23. Relatedly, he commenced to intersect with the criminal justice system from a very early age. I shall discuss his most serious convictions in more detail in a moment, but the tragic outcome is that this man, aged 30 at the time of the offence and now aged 39, has wasted the vast majority of his adult life in gaol; over the past many years has repeatedly spent no more than 14 months continuously in the community before being incarcerated yet again; and has found himself mixed up in a world in which murder, far from being an outrage of the utmost rarity, is more a part of everyday life, or rather death. And those murders have included a number of members of the family of the offender, including his own brother, unquestionably inflicting further trauma upon him.

24. To review his criminal record in more detail now: it began with an offence of dishonesty in 1999, a quarter of a century ago, for which he was detained. He has been imprisoned for inflicting really serious physical injury with intent to do so, along with malicious wounding and assault occasioning actual bodily harm; aggravated robbery in company, along with detaining in company for advantage and demanding property in company with menaces; specially aggravated break and enter with a dangerous weapon; possessing an unauthorised prohibited firearm and ammunition; threatening injury to a potential witness; acquiring ammunition subject to a prohibition order; and supplying a prohibited drug.

25. A few of those matters deserve brief analysis. The offence to do with a prohibited firearm and ammunition involved a Glock semi-automatic pistol that had cartridges in the magazine. The public justice offence involved threatening a woman, who the offender believed might give evidence against him, that she would be brutalised and sexually violated on behalf of the offender in a women’s gaol if she did. The most recent offending, which led to an aggregate non-parole period of 1 year 8 months that concluded on 19 September 2023, and an aggregate head sentence of 2 years 6 months that will expire shortly on 19 July 2024, featured the following. The offender being detained with over 37 g of heroin; a bundle of $22,000 in cash being located; a “plethora of items consistent with the supply of prohibited drugs”; and a bag of 95 rounds of .22 calibre ammunition.

26. The final point of analysis of the criminal antecedents is that, when the offence under discussion was committed years ago, the offender was then on parole for the offence to do with the semi-automatic pistol, a serious aggravating feature.

27. I accept that the upbringing of the offender was deprived and profoundly unsatisfactory in many ways, that it predisposed him to criminality from an early age, and that it therefore reduces his moral culpability for this offence to some degree. I also accept that the life of the offender has been distorted by prohibited drugs for many, many years. I further accept that the world in which he has lived has been a frightening, ruthless one in which he has been in mortal danger at times.

28. To be weighed against those mitigating aspects are the fact that his criminal record (including how it stood in late 2014) completely disentitles him to leniency; the fact that his conditional liberty when he made himself an accessory after the fact to murder is a serious aggravating feature; and finally, his repeated offences of violence, the possession of the pistol with ammunition, and the egregious threats against the potential witness show that he was a well-established person in the very dangerous world in which he was moving.

29. A further subjective feature with regard to the past is the submission for the offender that he was motivated by a misguided sense of loyalty to his elder brother in committing the offence. I accept that to some degree, based upon the agreed facts, and in particular the intercepted conversations between the two of them. But that factor can only go so far: on the evidence before me in these proceedings, Mr Tarek Zahed was certainly mixed up in the events of the evening in question in some way; but there is no evidence that he was one of the perpetrators of the murder, about which the offender chose repeatedly to lie.

30. Psychologically, I accept that this man suffers from post-traumatic stress disorder; depression and anxiety; a personality that could be said to be disordered; and a patently destructive dependence on prohibited drugs. All of those conditions have played a role in his offending over the years, including, I accept, some role, albeit indirect, in this offence. I also accept that they may make his time in custody somewhat more difficult than if he did not suffer from them. Having said that, I believe that he has spent so many years in custody as to be well able to cope with it; indeed, if anything, the risk that presents itself now is institutionalisation. Finally on this question, to the extent that the sentence I impose will extend back to a time of pandemic-induced lockdowns, I have taken that into account as well.

31. As for the future, as I have said this man is approaching the age of 40, having wasted years of his life in custody. That milestone may be leading to reflection. Since commencing opioid replacement therapy, there has been a long-awaited settling on his part in custody. He has also started to undertake therapy in that setting, and seems to be making some good progress. He enjoys a loving relationship with his eight-year-old daughter from custody, and a relationship with a romantic partner that may also be helpful. All of those things are, I think, positive signs. One can hope that the offender has reached a turning point, as was submitted on his behalf.

32. But as things stand at the moment, I go no further than a very guarded optimism that there may be some change in the future. And an important part of my reticence is that the parties agree that, even now, the offender is well aware of the identity of the person or persons who murdered the deceased, and yet he continues to remain silent. That may be a function of the world in which he has moved and the fact that he is currently in custody. But even so, it must play its role in my lack of satisfaction on balance that a real change has yet to occur in the life of the offender.

Various aspects

33. I turn now to discuss a number of discrete aspects of my task.

34. First, I do not propose to work through mechanistically statutory aggravating and mitigating factors; this judgment sets out all of those that I have taken into account.

35. Secondly, I have reflected upon the sentences imposed by me upon Mr Tarek Zahed and by a magistrate on Mr Triantafilos Vlangos, in order to ensure that the offender cannot experience a justifiable sense of grievance about the sentence that I shall shortly impose. But there are some obvious points of contrast that lead me to consider that he cannot: the offence of which Mr Tarek Zahed was convicted carried a maximum penalty of imprisonment for 7 years, and pertained to knowledge of manslaughter, not a murder. The offence of which Mr Vlangos was convicted in the Local Court – that being an attempt to intentionally destroy property by fire – featured a jurisdictional limit of imprisonment for 2 years, and he was playing the role of factotum in committing it. His criminal record is also far less than that of the offender.

36. Thirdly, in light of the offender’s age, his repeated periods of incarceration, the gravity of his previous offending, and my caution about the future, I do not find special circumstances, except as discussed in a moment.

37. Fourthly, as I have said, the most recent aggregate non-parole period expired on 19 September 2023. The parties were agreed that the offender should have a further backdate of 2 months 4 days to reflect the time that he was incarcerated serving balance of parole, as a result only of him being charged with the concealing offence.

33. As well, there should be a further backdate of 6 months, to reflect broadly the concurrence that I think would have been granted if the offender had been dealt with for this offence at the same time as the imposition of his most recent aggregate sentence.

34. Separately, I have taken care to ensure that the ratio between the total continuous non-parole period and the total continuous head sentence does not exceed 75%, and indeed is very slightly below it.

35. Finally, there has been a degree of rounding down in my calculations, in order to avoid unwieldly outcomes.

Imposition of sentence

1. Abdul Kadir Zahed, you are convicted of the offence of being an accessory after the fact to murder.

2. I sentence you to a non-parole period of 2 years 6 months, to commence on 15 January 2023, and to expire on 14 July 2025.

3. That will be followed by a parole period of 1 year 3 months, to expire on 14 October 2026.

4. To express my sentence more clearly: I have imposed a head sentence of imprisonment for 3 years 9 months, with a non-parole period of 2 years 6 months, with a starting point head sentence of 4 years, and a backdate to 15 January 2023.

5. The first date upon which it appears the offender will be eligible for possible release to parole is 14 July 2025.

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Decision last updated: 07 June 2024