R v Aljubouri

[2019] NSWSC 180

Supreme Court

New South Wales

Medium Neutral Citation:

R v Aljubouri; R v YA; R v Shaker [2019] NSWSC 180

Hearing dates:

21 February 2019

Date of orders:

01 March 2019

Decision date:

01 March 2019

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

Zulfukar Aljubouri
(1) The offender is convicted of the offence of manslaughter, and of the offence of knowingly concealing a corpse.
(2) An aggregate sentence for both offences pursuant to s 53A of the Crimes (Sentencing Procedure) Act will be imposed.
(3) Zulfukar Aljubouri is sentenced to a term of imprisonment for 7 years and 6 months, to date from 13 May 2015 and expiring on 12 November 2022. A non-parole period of 5 years and 7 months is set, expiring on 12 December 2020.
(4) The indicative sentences are as follows:
a. For manslaughter, imprisonment for 6 years and 6 months;
b. For concealing a corpse, imprisonment for 2 years 5 months.

 

YA
(1) The offender YA is convicted of the offence of accessory after the fact to manslaughter. He is sentenced to a community correction order for a term of 12 months from today, with the following conditions:
a. He must not commit any offence;
b. He must appear before the court if called on to do so at any time during the term of the community correction order; and
c. He is to perform community service work for 84 hours.
(2) He must report to the Liverpool Community Corrections Office on 8 March 2019 at 10am to facilitate the administration of the order.

 Rafat Shaker
(1) The offender Rafat Shaker is convicted of the offence of concealing a serious offence.
(2) For that crime, and taking into account the offence of larceny, he is sentenced to a conditional release order for the period of 12 months from today, with the following conditions:
a. He must not commit any offence;
b. He must appear before the court if called on to do so at any time during the term of the conditional release order.

Catchwords:

CRIME – manslaughter – excessive self-defence – deceased stabbed after struggle – confrontation initiated by deceased – weapon introduced by deceased - body of deceased concealed for four years - accessory after manslaughter – cleaning of crime scene – disposal of deceased’s property – concealing a serious offence

Legislation Cited:

Coroner’s Act 2009 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
R v Pennisi [2001] NSWCCA 326

Category:

Principal judgment

Parties:

Regina (Crown)
Zulfukar Aljubouri (Offender)
YA (Offender)
Rafat Shaker (Offender)

Representation:

Counsel:
Mr R Cooley (Crown)
Ms C Davenport SC (Aljubouri)
Mr A Conwell (YA)
Mr T Evers (Shaker)

  Solicitors:
Mr S Hughes (Crown)
Mr H Chamas (Aljubouri)
Mr P Sim (YA)
Mr I Jamal (Shaker)

File Number(s):

2015/00142240 (Aljubouri)2015/00142418 (YA)2015/00177175 (Shaker)

Publication restriction:

None

Judgment

1. HER HONOUR: Phuoc Monh Nguyen was stabbed to death on 1 May 2014. Thereafter, his body was taken to another location and concealed. The crime scene was cleaned and all signs of the killing were cleared away. Information about the crime was not passed on to police. Zulfukar Aljubouri, YA, and Rafat Shaker appear before the Court today to be sentenced for their respective roles in those events.

2. Zulfukar Aljubouri entered a plea of guilty before this Court on 20 June 2018 to the offence of manslaughter, a plea accepted by the Crown in full discharge of an indictment that charged him with murder. He pleaded guilty to a further common law charge of knowingly concealing a corpse. Manslaughter, an offence contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), carries a maximum penalty upon conviction of 25 years imprisonment; the penalty for the common law offence is at large.

3. YA entered a plea of guilty on 20 June 2018 before this Court to a charge of being an accessory after the fact to manslaughter contrary to ss 18(1)(b) and 350 of the Crimes Act. That offence carries a maximum penalty of 5 years imprisonment.

4. Rafat Shaker entered a plea of guilty to an offence of concealing a serious offence contrary to s 316(1) of the Crimes Act, an offence which carried a maximum penalty of 2 years imprisonment at the relevant time. His plea was also entered before this Court on 20 June 2018. He additionally asks the Court to take a further offence of larceny into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act1999 (NSW) when sentence is imposed upon him for the s 316(1) offence. When prosecuted on indictment larceny carries a maximum sentence of 5 years imprisonment; dealt with summarily (as this matter would have been if it proceeded in the usual course) the maximum penalty is 2 years imprisonment and / or a small fine.

The Facts of the Crimes

5. The facts of these crimes are established by Ex. C1, which is a statement of agreed facts. No other material relating to the objective circumstances of the offences was provided and the offenders must be sentenced on the basis of that material.  What follows is drawn from the agreed facts.

6. Mr Nguyen was born in 1964 in Vietnam. He immigrated to Australia as a child in about 1973. He made a life here, and married and had a son, although he was parted from his immediate family at the time of his death. He was aged about 50 years when he was killed.

7. In April 2014 Mr Nguyen's sister-in-law, Ms Van, arrived in Sydney from Vietnam for a holiday. Mr Nguyen and Ms Van travelled together to Brisbane, and then to Melbourne, to visit family in both cities.

8. On the afternoon of 1 May 2014, Mr Nguyen and Ms Van returned to Sydney from Melbourne, flying into Sydney Airport. At the airport Mr Nguyen rented a Renault Latitude car for a period of 5 days concluding on 6 May 2014. Ms Van and Mr Nguyen left the airport in the hire vehicle at about 6pm that day.

9. The pair arrived at the Hilton Hotel in Sydney a little after 7 o’clock, and checked in. After checking in at the hotel, Mr Nguyen and Ms Van went shopping in the city, with Ms Van purchasing items from retailers such as Hermes and Louis Vuitton. On their return to the hotel Mr Nguyen loaded their purchases into the boot of the hire vehicle. Mr Nguyen left the hotel alone at 9:48pm, with his departure in the Renault caught by the hotel’s security cameras. He must have driven, then or soon after, to an apartment he used at a unit block at Dudley Avenue, Bankstown.

10. The offender Zulfukar Aljubouri also made his way to the apartment at Dudley Avenue that night, at the request of Mr Nguyen.

11. The two men had first met late in 2013. The offender was a user of the drug methylamphetamine, and involved in its sale. Mr Nguyen was involved in its production. From their 2013 meeting until the time of his death, Mr Nguyen supplied the offender with methylamphetamine and the offender in turn acted as a courier transporting drugs to customers of Mr Nguyen. Transactions between the men always took place at the Dudley Avenue apartment, which Mr Nguyen used as a "safe house" for the manufacture and supply of methylamphetamine.

12. Late on the evening of 1 May 2014, Mr Aljubouri went to the unit at the request of Mr Nguyen. He travelled in a car accompanied by others, Shareef Al-Hadeethi and Anthony Gebran. Anthony Gebran went with the offender to the door of the apartment, but was not allowed entry by Mr Nguyen and left.

13. There followed an argument between the deceased and the offender, with Mr Nguyen angry that the offender had failed to collect a package as directed, and because he had brought others to the apartment. Mr Nguyen claimed that the offender had jeopardised the drugs operation by showing others the apartment.

14. The argument continued for some time, with the offender eventually telling Mr Nguyen that he was leaving. He attempted to call Mr Al-Hadeethi and Mr Gebran to come and collect him.

15. Mr Nguyen entered the room with a machete in his hand and told the offender that he wasn't to leave. Mr Nguyen came towards Aljubouri, and the offender pushed him to the wall and grabbed the hand in which he held the machete. The offender managed to grab the machete from Mr Nguyen and stabbed him in the ribs.

16. A neighbour downstairs heard moaning from a male that continued for a minute or so before stopping.

17. Mr Nguyen subsequently died from this injury, on 2 May 2014.

18. The offender Aljubouri dragged Mr Nguyen's body along the floor to the bathroom, leaving a trail of blood. He put the deceased into the bath tub. He tried to contact his friends, Al-Hadeethi and Gebran, but was not able to reach them.

19. Sometime prior to 10.29am on 2 May 2014 the offender contacted YA, who was then aged 17 years, and asked him to hire a carpet cleaning machine and bring it to the apartment. The offender Aljubouri packed all the items in the apartment, including cookware used by Mr Nguyen in the manufacture of drugs, into black plastic garbage bags.

20. The offender YA attended Woolworths at Bankstown at 10:29am on 2 May 2014 and hired a steam cleaning machine. He then went to the Dudley Avenue apartment. On arriving there, and seeing the scene, he became aware that the offender Aljubouri had killed Mr Nguyen. The offender YA was given the bags containing items from the apartment by the offender Aljubouri, and told to take the bags to the tip.

21. Later that morning Shareef Al-Hadeethi and Anthony Gebran arrived at the apartment. They saw that the offenders Aljubouri and YA were wearing gloves; there were bottles of cleaning fluids and bleach in the apartment, together with shopping bags from luxury retail brands.

22. Mr Al-Hadeethi asked the offender Aljubouri where his friend – Mr Nguyen - was. The offender said he had killed him. He said that he had a fight with his friend, who had pulled out a machete. The offender Aljubouri admitted to stabbing Mr Nguyen. Mr Al-Hadeethi could see blood and bloody drag marks on the tiled hall floor.

23. The offender Aljubouri showed Shareef Al-Hadeethi and Anthony Gebran the body of the deceased in the bath tub. Mr Al-Hadeethi noticed a wound to Mr Nguyen’s lower left chest, and some blood around his nose and mouth. The visitors left.

24. The offenders continued with the clean-up of the apartment. The offender Aljubouri contacted Rafat Shaker and arranged to borrow a truck from him. Aljubouri also contacted other persons and arranged for help in moving Mr Nguyen’s body away from the apartment.

25. The following morning, 3 May 2014, at about 4am, witnesses in the Dudley Avenue unit block observed three or four males dragging or carrying a sleeping bag. One witness described the sleeping bag as looking like it had a human body in it. A witness said this bag was being pushed along inside a shopping trolley. A box shaped truck pulled up at the front of the unit block and the sleeping bag was put into the rear. A witness telephoned police, who arrived a short time later. The witness told attending police that the men with the sleeping bag were looking with torches into parked vehicles, and that only one of the males got into the truck when it pulled up.

26. No other information has been provided to the Court about the concealment of Mr Nguyen’s body. The agreed facts state only that the offender Aljubouri concealed the body, and that Mr Nguyen’s skeletal remains were found on 24 July 2018 at Cordeaux. The offender told the Court, and the Crown conceded that, on that date, he took police officers to Cordeaux and pointed out the location of the remains.

27. On 4 May 2014, the offender YA rented a room at a hotel at Casula for half a day. He arrived at the hotel in the white Pantech truck that had been borrowed by the offender Aljubouri from Rafat Shaker. He used his driver's licence as identification in hiring the hotel room. The offender YA was observed to remove some suitcases and boxes from the truck and take them to the room.

28. ln the early evening the smoke alarm for the room was activated and the Manager went to the room to investigate. The door was answered by a solidly built, bald headed male of Middle Eastern appearance. The Manager looked into the room and could see the offender YA and two other males. The Manager noticed black garbage bags in the room. The Manager told the males to leave the room and they left. The Manager called police to report the incident.

29. The Manager returned to the room hired by the offender YA and found some wet and crumpled paper in the garbage bin. There was also a box for a Samsung mobile telephone that contained a boarding pass and luggage identification in Mr Nguyen’s name, and a car rental agreement for the Renault Mr Nguyen had leased at Sydney Airport. These items were given to police when they arrived.

30. On 9 May 2014, Mr Nguyen was reported missing by his family. Police commenced a missing person investigation. During the investigation it was established that Mr Nguyen had not used his mobile telephone, bank accounts, or email after 1 May 2014. Department of lmmigration records showed that he had not departed Australia after that date.

31. In November 2014, Mr Al-Hadeethi contacted police in relation to the death of Mr Nguyen, and subsequently showed officers the Dudley Avenue unit block where he had seen the body.

32. On 17 February 2015, police conducted a forensic examination of the Dudley Avenue unit. Mr Nguyen’s blood was found.

33. On 17 March 2015, police seized a white Pantech truck belonging to Rafat Shaker, telling him that the truck was being seized in relation to the homicide of Mr Nguyen. Believing at that time that the homicide the officers spoke of had been committed by Aljubouri, Mr Shaker failed to give the police any information about the offender borrowing the truck on 2 May 2014.

34. Subsequent analysis of a number of blood stains in the back of the truck located DNA belonging to Mr Nguyen.

35. Immediately after the truck was taken by police, the offender Shaker telephoned the offender Aljubouri and told him the truck had been taken by police. He asked Aljubouri to come to him urgently.

36. On 13 May 2015, police searched the offender Aljubouri’s home in Casula. A watch which had been purchased by Mr Nguyen in the days leading up to his death was found. The box contained a warranty card in his name. A fingerprint on the outside of the box was identified as that of the offender Aljubouri.

37. The offender Aljubouri was arrested that day, as was the offender YA. The offender Shaker was arrested on 16 June 2015.

38. The offence of larceny charged against Rafat Shaker and before the Court on a Form 1 document relates to the theft of a wallet and its contents on 16 February 2015. The wallet, containing over one thousand dollars in cash, a firearms licence, and credit and other cards, had been inadvertently dropped by the owner at a service station in Casula that day. The offender saw the wallet, picked it up from the floor of the service station shop, and took it away.

39. The theft was discovered by reference to closed circuit camera footage depicting the offender’s actions. When a search warrant was executed at his home on 13 May 2015 some of the contents of the stolen wallet, including the firearms licence, but not the cash, were found.

40. The offender refused to be interviewed.

The Gravity of the Offending

Aljubouri: Manslaughter, Knowingly Concealing a Corpse

41. The basis upon which the charge of manslaughter is brought is that of excessive self-defence. That is, it is accepted that the offender’s act in stabbing Mr Nguyen to the ribs caused his death, and that the offender believed that his conduct was necessary in his own defence, but that it was not a reasonable response in the circumstances as he perceived them. The offender’s response to the threat was excessive. 

42. That act done with excessive force has led to the unlawful taking of a human life. A life is lost, and the whole community is diminished when one of its members is violently slain. Therein lays the reason for the seriousness of the crime of manslaughter, and the starting point for any assessment of the gravity of the individual act.

43. Whilst there is no information available to the Court as to the impact of the crime on those who knew and loved Mr Nguyen, it is reasonable to conclude that his wife and son, siblings, and broader family, have suffered greatly from his loss.

44. The dispute that led to Mr Nguyen’s death began with him. He initiated a verbal argument and then, when the offender Aljubouri sought to leave the apartment, Mr Nguyen produced a machete. The offender, who was not armed, believed that he was in serious danger, and struggled with Mr Nguyen for the weapon. Having wrested the machete from him but, despite that, still believing he was in danger, the offender used it, directing a blow to Mr Nguyen’s torso. It is not contended that the offender intended to kill Mr Nguyen, although the act itself is evidence that he intended in his defence to do some serious harm to Mr Nguyen.

45. The offence occurred entirely spontaneously, and within a very short space of time, perhaps no more than a few seconds.

46. The machete was used to strike a single blow, but one struck with lethal force.

47. All homicides are serious but, within that group of serious crimes, there are degrees of severity: this offence is one that, in all of the circumstances made known to the Court, falls some little distance below the midpoint of the range of objective gravity. At the time the offender struck the lethal blow, Mr Nguyen had been disarmed, and the threat he posed much diminished, or even averted. The response was excessive to that extent. However, the act was one born of fear and panic, in the context of a violent struggle for a large knife.

48. The second offence for which the offender is to be sentenced is in my conclusion a very serious example of an offence of its type. Although the Court has been given almost no information about the circumstances of the commission of the offence, it can be concluded that the offender, either himself or by directing others, took away and concealed Mr Nguyen’s body shortly after killing him, intending to avoid detection of his crime. The body remained hidden for over 4 years thereafter. That is 4 years in which Mr Nguyen’s family knew nothing of the whereabouts of his remains, and during which they were prevented from formally marking his passing and honouring him by funeral rites. Wondering what had happened to him, and where his resting place was, could only have magnified the pain and grief surrounding his death.

49. The concealment also did a more public harm: there can be no doubt that the concealment of the body had a substantially adverse impact upon the progress of the police investigation into Mr Nguyen’s disappearance and death. It can be readily concluded that, had his body been left where it lay in the apartment at Bankstown, the inquiries into what had happened would have rapidly advanced, and a far more complete account of events than that able to be presented to the Court discovered.

50. The penalty for this offence is at large. Whilst some general guidance as to sentence can be taken from statutory offences where there is real similarity between them, there is no crime that fits this one with a sufficient degree of similarity to provide any real assistance of that nature. An offence contrary to s 81 of the Crimes Act contains an element of interfering with a corpse, but the conduct criminalised by that offence is interference of an indecent or undignified nature; it does not address conduct which conceals a corpse and prejudices an inquiry into serious crime. An offence contrary to s 35(2) of the Coroner’s Act 2009 (NSW) penalises a failure to report a death in some circumstances, but it does not incorporate any element of concealment and the consequential prejudice to an inquiry, as the common law offence does. Perhaps the closest parallel is found in the public justice offences in Part 7 of the Crimes Act, such as an offence contrary to s 317 of tampering with evidence. However, even this offence, which carries 10 years imprisonment upon conviction, does not import the full criminality of concealing the body of a human being.

41. Even on the basis of the very limited information provided to the Court about this offence, I regard it as gravely serious.

YA: Accessory After the Fact to Manslaughter

52. The Crown does not suggest that the offender YA had any knowledge that Mr Nguyen had been killed until he arrived at the Dudley Street apartment and saw the bloody scene and Mr Nguyen’s body. On becoming aware of the crime, he assisted the principal to clean the crime scene using bleach and other cleaning products, obviously done to conceal the crime and the principal’s responsibility for it. He provided further assistance by removing Mr Nguyen’s property from the apartment, taking it in a borrowed truck to the Casula hotel room he rented, where he tried to destroy some of the items, perhaps by burning them and then dousing them with water when a smoke alarm was activated. It is reasonable to conclude that only the intervention of the hotel manager prevented the offender from disposing of Mr Nguyen’s property. The attempts to destroy property were unsophisticated and poorly thought out.

53. The gravity of the offence overall is in the offender’s removal of the property from the crime scene, and in the steps he took to aid the principal by cleaning the apartment to remove any evidence of the crime that was committed there. This offence is one of a moderate degree of gravity.

Shaker: Conceal Serious Offence (and Form 1)

54. The Crown cannot contend that the offender, Rafat Shaker, had knowledge of the commission of the manslaughter of Mr Nguyen until told by police about the homicide in the context of the seizure of the Pantech truck on 17 March 2015. That is, the offender formed a belief about the commission of the crime, and the use to which his truck had been put, on the day he was questioned, 17 March 2015, and did not give that information, which was material to the investigation, to police.

55. The offender had, on the facts before the Court, no actual knowledge of what had occurred; rather, his information was arrived at through supposition and belief. His belief went to a fact concerning the immediate aftermath of the commission of a very serious crime; he had no knowledge of the actual circumstances of its commission. Although the seriousness of the crime concealed must be borne in mind, these factors reduce the gravity of the crime, such that it falls towards the lower end of the range for such offending.

56. The larceny of the fallen wallet was an act of casual dishonesty and, having regard to the amount of money stolen, a relatively serious one for an offence of its type. The criminality of this offence must be recognised in the way discussed by Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518, at [42].

General Deterrence

57. Each of these crimes requires the Court to have regard to the principal of general deterrence. Killing another human being is a crime that does great harm, and others must appreciate its wrongness, and be deterred from such conduct.

58. Those who would assist killers, or fail to bring material information about the commission of serious crime to the attention of police, also do a great harm, in that they aid the principal in evading justice, or act to the prejudice of police inquiries into crime. Such persons must also be deterred from acts of that nature.

Criminal Antecedents

Zulfukar Aljubouri

59. Ex. C2 is the offender’s criminal history. He had no criminal history until 2014, when he was aged about 22 years. Prior to Mr Nguyen’s manslaughter, in January 2014, the offender had been charged with offences of driving recklessly, driving under the influence of alcohol, and escaping police custody. He was on bail for those matters when Mr Nguyen was killed, this being a matter of aggravation. After having failed to appear to answer them, and having being charged with a further offence of failing to appear, the offender was dealt with by way of fine and community service orders.

60. He was later called-up with respect to the community service orders, and sentences of imprisonment were imposed, being terms of 7 months with a non-parole period (“NPP”) of 4 months for escaping police custody, and one month for the reckless driving offence, both sentences commencing on 9 June 2015. By that time, the offender had been charged over Mr Nguyen’s death, and he was in custody bail refused. He served the whole term of 7 months imprisonment.

61. After Mr Nguyen was killed but before the offender was arrested, he was charged with other driving related offences, dealt with by way of fine. Also in this period, on 1 November 2014, the offender committed offences of supply prohibited drug and destroying property. On 6 September 2016, sentences of imprisonment were imposed in the District Court, of 27 months and 6 months respectively. A NPP of 13 months was fixed for the supply offence, although the offender served the whole term.

YA

62. At the time of the commission of his offence YA had no criminal history and he must receive the benefit of his then good character.

63. He has subsequently been dealt with by the courts for a number of driving offences, together with a count of having custody of a knife in a public place. The latter offence occurred on 28 February 2016; the offender was convicted of it in June that year and placed on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for a period of 12 months. The other offences in his history – the most serious of which are for driving whilst disqualified - are from November 2014, February 2015, and February 2016.

Rafat Shaker

64. Rafat Shaker has no criminal record and he will receive the benefit of his good character when sentence is imposed.

Other Information in the Crown Case

Time spent in custody

65. Each of the offenders has spent some time in custody referable to their respective crimes. Zulfukar Aljubouri has been in custody since his arrest on 13 May 2015. He has served other terms of imprisonment during that time for unrelated offences, although a totality issue arises because, with each unrelated custodial sentence imposed upon him, the offender served the whole of the term, as he was bail refused in relation to these offences and not able to be admitted to parole.

66. The parties agree that the time spent in custody solely referable to these matters is one of 3 years and almost 10 months, as at today. The sentence imposed upon him, which must be a full-time custodial sentence, no other sentence being adequate, must take into account that period of imprisonment. Some allowance in the offender’s favour must also be made to reflect the principle of totality referable to the other terms of imprisonment served.

67. That principle also requires some level of concurrency in the sentences to be imposed for the offence of manslaughter, and that for concealing a corpse. Since the criminality of each offence is quite distinct, the level of concurrence will be modest.

68. Although the custodial history does not bear it out, the parties agree that YA spent some 21 days in custody with respect to this matter. The sentence imposed upon him will take that period of incarceration into account.

69. Rafat Shaker spent 8 days in custody. That period of incarceration will be taken into account in the sentence imposed upon him today.

Parity

70. One other person has been dealt with by the courts for involvement in events surrounding Mr Nguyen’s death. Anthony Gebran was charged in August 2015 with concealing a serious offence, the serious offence being murder, and convicted before the Local Court on 16 October 2015. He was sentenced to a term of 18 months imprisonment, suspended pursuant to the then s 12 of the Crimes (Sentencing Procedure) Act.

71. The facts tendered against Gebran establish that he had actual knowledge of the killing of Mr Nguyen, having attended the Dudley Avenue apartment when his body was still present and seen both the body, and Aljubouri and YA cleaning the scene. He heard the offender Aljubouri acknowledge having killed Mr Nguyen. With that extensive knowledge derived from direct observation, he failed to advise police of what he knew. Gebran’s criminal history is relatively lengthy, with entries for drug offences, driving offences, and offences of violence among others.

72. Rafat Shaker is, like Anthony Gebran, charged with concealing a serious offence, although there are material distinctions that render the question of parity of limited significance. Mr Gebran concealed a murder rather than a manslaughter, and the source of the material information he had was his own direct observation of the deceased, the crime scene, and admissions from the principal. Rafat Shaker, on the agreed facts, had a belief concerning the aftermath of the crime, derived from supposition only. The marked differences in the criminal history of each is a further distinction.

Pleas of guilty

73. [It is noted that the amendments to introduce statutory discounts for pleas of guilty made by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 do not apply to these proceedings, they having been commenced prior to 30 April 2018.]

74. As already observed, each offender pleaded guilty in this Court. Ordinarily those pleas would be regarded as very late pleas, attracting a lesser discount on sentence, to reflect the reduced utilitarian value of a late plea. The Crown conceded that the offender Aljubouri offered to enter a plea of guilty to manslaughter in 2017, but the offer was not at that time accepted by it. Although the Court was not advised of the full factual basis upon which the offer was made, having regard to the account of events given by the offender to Mr Al-Hadeethi, I infer that it was then, as now, excessive self-defence.

75. Although a plea offered in 2017 by an individual charged in 2015 could never be characterised as an early plea, consistent with authority (such as R vPennisi [2001] NSWCCA 326 and others) the offender should receive some recognition of his willingness to enter it at an earlier stage, and the utilitarian value it would have had if then accepted. A discount on the sentence that would otherwise be imposed of 20% will be allowed.

76. Both YA and Rafat Shaker submitted that each should receive a full discount on sentence since, although their pleas were entered at a very late stage of proceedings, it was the first time the particular charge had been made available.

77. Although I accept that the charges to which each has pleaded guilty were not brought by the Crown at an earlier stage, it is always open to any person charged with a crime to offer a plea of guilty to an alternative charge, whether or not such a charge has been laid. There is no suggestion that either offender did so.

78. In those circumstances, and in view of the nature of the sentences that I will shortly impose, although I have had regard to the pleas of guilty entered by each, and accept that the pleas are of some utilitarian benefit to the criminal justice system, and can be treated as evidence of remorse, I do not intend to allow a specific percentage discount.

79. I do take into account for each the fact that the charge which ultimately proceeded against each is a Table offence and, in other circumstances, could have been dealt with in the lower courts. The jurisdictional limits that apply to penalty in those courts, and particularly the differing sentencing regime that applies in the Children’s Court, would have then had application.

The Subjective Cases

Zulfukar Aljubouri

80. The offender was born in Iraq on 3 March 1992. He came to Australia at the age of 11 with his family.

81. In his case the offender tendered and relied upon a psychiatric report from Dr Richard Furst (Ex. A1), and letters and references from family, friends, and others. Ex. A2 is the offender’s affidavit; he was not required for cross-examination on its contents.

82. In his affidavit the offender deposed that he is now aged 26 years, and has been living in Australia since 2003, having arrived here as a refugee. He said he was raised to have good values, and feels ashamed of what he has done, and remorseful for the death of Mr Nguyen. The offender says that he is sorry for his actions, and understands that he has caused hurt to Mr Nguyen’s family.

83. The offender gave an account of the events of 2 May 2014 in which he said that everything happened very quickly, and he tried to defend himself. He concedes that he “went beyond”, presumably, beyond what was reasonable in his defence. The offender said that, when he realised Mr Nguyen was dead, “panic set in”, and he feared being punished for the killing, by the authorities or by Mr Nguyen’s friends, and blamed for the drug paraphernalia that was on the premises.

84. He concedes having been a drug supplier and user, having commenced using illicit drugs in his teens. He believes his judgment was impaired by drug use at the time of Mr Nguyen’s death. That is not, of course, an excuse for his conduct. Although the offender acknowledges having been institutionally dealt with within the Corrections system for drug related offences, he says that he no longer uses drugs.

85. In his report Dr Furst gave an account of the history given to him by the offender, of migration to Australia, followed by a high school education in western Sydney. On finishing school in year 11 the offender did some further study at TAFE, and worked in construction, hospitality, and furniture removals over the following years.

86. The offender told the doctor that, after leaving school, he began using cannabis, with his use increasing when he worked in the hospitality industry. He began to use ecstasy and other similar drugs socially, and moved on to methylamphetamine use. At the time of his arrest he was using about one gram of that drug on a daily basis. The offender told Dr Furst that he no longer uses drugs and has no intention of doing so in the future.

87. As for the death of Mr Nguyen, the offender said that he felt better after telling Mr Nguyen’s family where his body was which, he said, was done as a consequence of “a plea bargain negotiated with the DPP”, that being the plea to manslaughter in full discharge of the indictment.

88. Dr Furst concluded that there is no indication that the offender suffers from any mental illness. He has, based upon the history the offender gave the doctor of methylamphetamine dependence, a substance use disorder.

89. The offender also provided a number of testimonials to the Court from his parents, friends, and leaders of the Iraqi community in Sydney. All speak highly of the offender, express shock at his involvement in these offences, and attribute his conduct to the poor choice of friends he made, and the negative influence those friends had upon him. One of the offender’s supporters works in construction and demolition, and is prepared to offer the offender employment upon his release from custody. Most referred to the offender’s remorse for his crimes.

90. On the basis of that evidence I accept that the defendant does regret his conduct, and has shown some remorse for his crimes.

YA

91. YA was aged 17 when he aided the principal after Mr Nguyen was killed. He is now 23 years old and shortly to be married.

92. A pre-sentence report, and a later sentencing assessment report, Ex. C7, provides details of the offender’s background and current circumstances. He grew up in western Sydney with his parents and siblings in what he described as a supportive environment. In a letter to the Court, Ex. Y3, the offender’s mother contradicts this, stating that the family was subjected to years of domestic violence and trauma at the hands of her former husband, and had to flee to a “safe house”. She blames the trauma of his childhood experiences for his current predicament.

93. The separation of the offender’s parents occurred when the offender was aged sixteen. Thereafter, he began to use illicit drugs and associate with other drug users.

94. The offender told the author of the pre-sentence report that he had been drug affected at the time of the offence, young, and “not thinking straight”. He was assessed as appearing to minimise his offending behaviour, blaming it on his associates, drugs, and immaturity.

95. The offender is not presently working, but has undertaken some study through TAFE in 2017 and 2018. His mother says that he has grown into a “mature family man” who is extremely remorseful for his crime.

96. Evidence from the offender’s fiancée is that he has matured since the commission of the crime and is remorseful for it. She is clearly supportive of him and wishes to see the end of these proceedings against the offender.

97. Dr Mark Milic, clinical and forensic psychologist, saw the offender on 9 February 2019 and prepared a report of his conclusions dated 18 February 2019.

98. Dr Milic observed that the offender seemed “mild-mannered and sombre” in his interview, as well as appearing “lucid and cooperative”. Upon completion of a Depression, Anxiety, Stress Scale self-report questionnaire, the offender presented as having acute symptoms of psychiatric distress, having had severe symptoms in the week prior to the interview.

99. Dr Milic took a history from the offender, noting that his family fled the war in Iraq, migrating to Australia in the early 1990’s. The offender said that he changed schools and homes frequently as a child. When his parents separated when he was sixteen, with his father returning to Iraq and his mother, siblings, and himself remaining in Australia, the offender began using marijuana and socialising with negative peers to escape the problems that surrounded him. The offender acknowledged occasional use of cocaine and alcohol during this time, something that, with hindsight, he claimed to regret.

100. The offender completed Year 12 at school, although he did poorly, and later did both some study, and work. He was not able to complete his course of study, and left the jobs he had.

101. At the time of the offence he was not working, and was using cannabis. He later secured employment, but gave it up after sustaining an injury to his left knee. He went on to attain vocational certificates in Human Resources, Business Administration, and Business.

102. Dr Milic reported that the offender presented as remorseful, and apologetic, for his actions. He claimed to have learnt some important lessons and, as reported by Dr Milic, “showed insight” into his offending behaviour.

103. The offender told Dr Milic that he has not used drugs since the commission of the offence. He also noted that he has distanced himself from negative peers whilst on bail, and only socialises with his fiancée, family, and family friends.

104. Dr Milic concluded that the offender has good prospects of rehabilitation.

105. I accept that the offender is remorseful for his crime; although his failure to accept full responsibility for his conduct, as opposed to blaming drug use and the influence of others, must diminish that to an extent.

106. The offender is now an adult, and is being dealt with at law. However, I accept that immaturity played a role in his decision making in 2014.

Rafat Shaker

107. Rafat Shaker tendered three character testimonials to the Court. His sister, Marwa Shaker, believes the offender to be a loving family man whose conduct is out of character. She says that he has told her how sorry he is that he did not do more when he could.

108. In a document directed “To whom it may concern”, the religious leader of the offender’s community echoes Ms Shaker’s positive assessment of the offender, stating that he is a good and honest member of the Sabian Mandaean community. A friend from within that community, Salmeen Al Haider, also speaks highly of the offender, and notes that he is sincerely remorseful for his conduct.

109. I accept that he is remorseful for his crime.

Prospects for the Future

110. On all of the evidence I accept that each offender has good prospects for the future. Each has a degree of insight into his crime, and strong family support. For the offenders Aljubouri and YA, much will depend on the capacity of each to remain abstinent from illicit drug use. If they do, it might be expected that they, and Rafat Shaker, will have a future more positive than their pasts.

110. In these circumstances, specific deterrence has a lesser role to play than would otherwise be the case.

Special Circumstances

112. I do not propose to make a finding of special circumstances with respect to any of the offenders. Zulfukar Aljubouri asserts that he has been abstinent from drugs for a period of years. He has strong family support to assist him with his reintegration into the community. The period of parole that will apply as a consequence of the usual statutory ratio should be sufficient.

113. YA similarly claims to have been abstinent from drugs for a number of years. His life appears to be moving in a positive direction. In any event, there is no utility in such a finding having regard to the nature of the sentence that is to be imposed.

114. Neither is there utility in a finding of that nature relevant to Rafat Shaker.

Sentence

Zulfukar Aljubouri

115. The offender is convicted of the offence of manslaughter, and of the offence of knowingly concealing a corpse.

116. An aggregate sentence for both offences pursuant to s 53A of the Crimes (Sentencing Procedure) Act will be imposed.

117. Zulfukar Aljubouri is sentenced to a term of imprisonment for 7 years and 6 months, to date from 13 May 2015 and expiring on 12 November 2022. A non-parole period of 5 years and 7 months is set, expiring on 12 December 2020.

118. The indicative sentences are as follows:

1. For manslaughter, imprisonment for 6 years and 6 months;

2. For concealing a corpse, imprisonment for 2 years 5 months.

YA

119. The offender YA is convicted of the offence of accessory after the fact to manslaughter. He is sentenced to a community correction order for a term of 12 months from today, with the following conditions:

1. He must not commit any offence;

2. He must appear before the court if called on to do so at any time during the term of the community correction order; and

3. He is to perform community service work for 84 hours.

120. He must report to the Liverpool Community Corrections Office on 8 March 2019 at 10am to facilitate the administration of the order.

Rafat Shaker

121. The offender Rafat Shaker is convicted of the offence of concealing a serious offence.

122. For that crime, and taking into account the offence of larceny, he is sentenced to a conditional release order for the period of 12 months from today, with the following conditions:

1. He must not commit any offence;

2. He must appear before the court if called on to do so at any time during the term of the conditional release order.

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Decision last updated: 01 March 2019