R v Batak (No 5)

Case •

[2022] NSWSC 1217

•

16 September 2022

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: R v Batak (No 5) [2022] NSWSC 1217
Hearing dates: 5, 6, 7 September 2022
Decision date: 16 September 2022
Jurisdiction:Common Law - Criminal
Before: R A Hulme J
Decision:

Accessory before the fact to murder: Imprisonment for 14 years with a non-parole period of 10 years and 6 months.

Accessory before the fact to attempted robbery whilst armed with a dangerous weapon: Fixed term of imprisonment of 2 years.

Catchwords:

CRIME — Murder — Constructive murder — Accessory before the fact to attempted robbery whilst armed with a dangerous weapon — Accessory before the fact to murder — Found guilty by jury

SENTENCING — Application of standard non-parole period to offence of accessory before murder — Standard non-parole period not applied — Need for appellate clarification

SENTENCING — Relevant factors on sentence — Objective seriousness — Version of events given by offender on sentence not accepted

SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency, and totality — Criminality for offence of accessory before the fact to attempted armed robbery entirely subsumed by criminality for offence of accessory before the fact to murder — Concurrent sentences imposed

Legislation Cited:

Crimes Act 1900 (NSW), ss 18(1), 19A(1), 97(2), 346

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(g) & (h), 54D, Pt 4 Div 1A

Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)

Criminal Legislation Act 2007 (NSW)

Criminal Legislation Act 2007 (NSW), Sch 3[5]

Criminal Legislation Amendment Act

Cases Cited:

Aoun v R [2007] NSWCCA 292

Aoun v R: R v Blundell [2016] NSWSC 1810

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

Corda v R [2014] NSWCCA 281

Darcy v R [2022] NSWCCA 54

DJB v R, R v DJB [2007] NSWCCA 209

Lambkin v R [2020] NSWCCA 327

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v AC (No 7) [2016] NSWSC 404

R v Coskun (No 5) [2022] NSWSC 1216

R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452

R v Jaghbir(No 4) [2020] NSWSC 1704

R v Kirchner [2011] NSWSC 1516

R v Merrin [2007] NSWCCA 255

R v Mills (Court of Criminal Appeal (NSW), 3 April 1995, unrep)

R v Proud [2017] NSWSC 286

R v Robert Nikolovski [2018] NSWSC 1147

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

R v Zanker (No 2) [2017] NSWSC 1254

SAT v R [2009] NSWCCA 172

Tepania v R [2018] NSWCCA 247

Category:Sentence
Parties: Rex
Cem Batak
Representation:

Counsel:
Ms S Traynor (Crown)
Mr T Woods (Offender)

Solicitors:
Solicitor for Public Prosecutions
Fahmy Lawyers
File Number(s): 2019/260254

Judgment

  1. HIS HONOUR: Cem Batak supplied Cengiz Coskun with a loaded Glock pistol, as well as an item of clothing, for use in carrying out a home invasion style armed robbery at the home of a drug dealer at Five Dock in the early hours of 2 April 2019. There was an exchange of gunfire between Mr Coskun and the drug dealer, during which another occupant of the home received a fatal gunshot wound to the head.

  2. Mr Batak was found guilty by a jury of being an accessory before the fact to two offences: the murder of John Odisho and the attempt to rob Sargon Odisho of drugs and money whilst armed with a dangerous weapon. [1]

    1. Crimes Act 1900 (NSW), ss 19A(1), 97(2) and 346

  3. The basis of the murder is that the act causing death was done in an attempt to commit a crime punishable by imprisonment for 25 years (i.e., constructive murder). [2]

    2. Crimes Act, s 18(1)

Statutory guideposts to sentencing

  1. The maximum penalty for murder is imprisonment for life. For robbery whilst armed with a dangerous weapon (including an attempt to commit such an offence) it is imprisonment for 25 years.

  2. There is a standard non-parole period prescribed for murder which would be 20 years if it applied in the circumstances of this case. There is controversy between the parties as to this.

Application of the standard non-parole period

  1. A number of sentencing decisions have referred to a single sentence in a Court of Criminal Appeal judgment by Hodgson JA in 2007 as “holding” that the standard non-parole period does not apply to an accessory before the fact to murder: Aoun v R [2007] NSWCCA 292 at [27]. In the course of dealing with a ground of appeal asserting that a sentence was manifestly excessive, and after referring to the standard non-parole period prescribed by s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour said:

“The trial judge rejected a submission for the Crown that this provision applied to the applicant, and I agree with the trial judge on this matter.”

  1. The submissions of counsel for Mr Batak contend that this Court should “follow the reasoning” in that judgment. (It is difficult to accept that what Hodgson JA said amounts to “reasoning”.)

  2. The Crown contended that the standard non-parole period for murder should be taken into account, noting that s 346 of the Crimes Act was amended in a significant respect shortly after judgment was delivered in Aoun v R.

  3. Section 346 presently provides:

“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.” (Emphasis added)

  1. An amendment effected by the Criminal Legislation Amendment Act 2007 (NSW), which took effect on 15 November 2007, substituted the words emphasised above in lieu of the previous wording: “same punishment as the principal offender”. Judgment in Aoun v R had been handed down shortly before, on 16 October 2007.

  2. Standard non-parole periods were first inserted in the Crimes (Sentencing Procedure) Act 1999 (NSW) with effect from 1 February 2003. [3] Nothing was said in either the Explanatory Note accompanying the Criminal Legislation Amendment Act or in the second reading speech of the Attorney General on 7 November 2007 about the decision in Aoun v R, or generally about standard non-parole periods applying to accessories before the fact (or aiders and abettors in respect of which an identical amendment was made to s 351B).

    3. Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)

  3. The Court in Aoun v R made no reference to s 346; however, that section and related provisions were referred to in SAT v R [2009] NSWCCA 172. In that case the Court was concerned with whether standard non-parole periods applied in the case of an aider and abettor. In a considered decision, Budden J (Grove and Howie JJ agreeing) referred to a number of cases and concluded that “the issue which has been raised remains to be authoritatively determined”. That said, he saw no reason for departing from the approach taken in two other cases in the Court in which the standard non-parole period was regarded as applying without any issue having been raised as to whether or not it applied: R v Merrin [2007] NSWCCA 255; DJB v R, R v DJB [2007] NSWCCA 209.

  4. Davies J in R v Jaghbir (No 4) [2020] NSWSC 1704 referred to s 346 but preferred to follow Aoun v R, noting that this had been done by other judges who had made reference to it: R v Kirchner [2011] NSWSC 1516 at [5] (Schmidt J); R v AC (No 7) [2016] NSWSC 404 at [4] (Hamill J); R v Proud [2017] NSWSC 286 at [6] (Harrison J); R v Zanker (No 2) [2017] NSWSC 1254 at [6] (Fagan J). See also R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654 at [9] (Fagan J).

  5. Davies J noted two cases in which the standard non-parole period had been taken into account but in which there had been no reference made to Aoun v R: R v Blundell [2016] NSWSC 1810 at [6] (Hall J); R v Robert Nikolovski [2018] NSWSC 1147 at [1] (Latham J).

  6. The Crown in the present matter also identified two further cases concerning accessories before the fact in which the standard non-parole period had been applied without any specific consideration of the issue: Corda v R [2014] NSWCCA 281 at [32]-[39] (Schmidt J); Lambkin v R [2020] NSWCCA 327 at [4] (Bellew J).

  7. I note that standard non-parole periods are said not to apply to an attempt to commit an offence and aiding and abetting an offence according to Criminal Practice and Procedure NSW, Lexis Nexis, at [5-s 54B.1].

  8. It is not clear to me that the 2007 amendment to s 346 effected any relevant change from the position that existed at the time of Aoun v R. The Crown referred to a report by the NSW Sentencing Council: Whether ‘Attempt’ and ‘Accessorial’ Offences Should Be Included in the Standard Non-Parole Sentencing Scheme (March 2005). That report recommended that accessorial offences should not be included in the standard non-parle sentencing scheme. There is no indication that the Council’s consideration and report was taken into account in formulating the amendment to s 346 (and related provisions) two years later. The Attorney General’s description of the amendment made by the Criminal Legislation Amendment Act in his second reading speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 November 2007 at p 2) provides no assistance at all as to the applicability of standard non-parole periods to accessorial offences. The Attorney Generally merely explained the purpose of the amendment to as follows:

“The amendment clarifies that it is the accessory’s criminal record, not the principal offender’s, which determines the maximum penalty that may be imposed.”

  1. If I were to apply the standard non-parole period in my assessment of the appropriate sentence in this case, that would be done in the manner described in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act. (As to the latter, see Tepania v R [2018] NSWCCA 247 at [110] (Johnson J).) Given its role as a guidepost, reasonable minds might differ as to whether there is much difference in the approach of taking the standard non-parole period into account in the usual way, and taking it into account in the manner described by Hodgson JA in Aoun v R at [27], which is the approach adopted by Fagan J in Zanker v R at [6], Hamill J in AC (No 7) at [4], and Davies J in Jaghir (No 4) at [8]. Namely, treating the standard non-parole period as a matter which indicates “the attitude of the legislature to the offence of which the [offender] has been convicted of aiding, and it being kept in mind that the maximum penalty for both sentences is the same”.

  2. Ideally, this controversy should be resolved once and for all in an appropriate case by the Court of Criminal Appeal, or perhaps even by Parliament. Until then, it seems the prudent course for me is to follow the Aoun v R line as various others have done at the first instance level.

The offences

  1. Cem Batak had known the principal offender, Cengiz Coskun, since school. They had mutual friends and were both part of the Turkish community in the Auburn area. Mr Batak was aware that Mr Coskun had recently been imprisoned, and in a covertly recorded conversation on 23 July 2019 [4] Mr Batak was heard saying that “once he came out” he (Coskun) was associating with “a whole new bunch of people, no-one knew them”. (Detective Sergeant Phillips confirmed that, in respect of the sentence most recently served by Mr Coskun, he had been on parole for about two years which expired on 8 January 2019. [5] )

    4. Exhibit CN

    5. 10.5.22, T1088

  2. In the period immediately prior to the murder there was contact between Mr Batak and Mr Coskun at least as early as 16 March 2019, when a mutual acquaintance, Abdulsamed Sari, provided Mr Coskun with Mr Batak’s mobile number. At least from that point the pair were in regular contact and met on a number of occasions. Suggestive of something malevolent was the fact that their meetings would occur in parks, and at night. [6]

    6. Exhibit BD

  3. The Crown pointed to there having been only a few other numbers Mr Coskun called using his mobile phone service ending in 397. Mr Coskun also called Mr Batak from another of his multiple phones, a service ending in 685, in the lead up to the murder. There was a considerable amount of contact on 20, 21 and 22 March 2019, and on the morning of 23 March 2019 when Mr Coskun’s phone interacted with a tower in Five Dock.

  4. John Odisho and Sargon Odisho lived in a first-floor apartment at 50-52 East Street, Five Dock. On the night of 1-2 April 2019, Sargon Odisho was in possession of a substantial quantity of cocaine, a quantity of MDMA, two handguns, a shotgun, ammunition, and a taser.

  5. Cengiz Coskun and an unknown male entered the apartment at about 3.45am on 2 April 2019. They gained entry by scaling a fire hydrant shelter and climbing onto the balcony of the apartment, before entering the living space via an unlocked sliding door. They were each armed with a handgun. Coskun was wearing a hi-vis shirt, gloves, and a partial face covering.

  6. A scuffle with Sargon Odisho ensued in the hallway. John Odisho and his girlfriend, Larissa Mitchell-Wiszniewski, were in the main bedroom and were woken by the noise. John Odisho went to the closed and locked bedroom door to investigate. One of intruders forced the door open, causing significant damage to it. John Odisho went out to the hallway while the unknown male entered and threatened Ms Mitchell-Wiszniewski by pointing his gun at her. He then exited the bedroom, following which Ms Mitchell-Wisniewski heard immediate gunfire.

  7. John Odisho and Sargon Odisho were in the 2nd bedroom and ten shots were fired into that room by one of the intruders. Sargon Odisho fired six rounds of shotshell out of the bedroom toward the intruders, with one striking Cengiz Coskun in the left flank. Sargon Odisho was struck by two .40 calibre bullets to his upper and lower left arm. John Odisho received a .40 calibre bullet wound to the head from which he later died. The intruders fled immediately after the gunfire.

  8. Cengiz Coskun was tried before a jury and found guilty of attempted robbery whilst armed with a dangerous weapon and constructive murder. He was sentenced yesterday: R v Coskun (No 5) [2022] NSWSC 1216.

  9. Cem Batak was tried separately. He was found guilty of being an accessory before the fact to the offences for which Mr Coskun was convicted. There was evidence admitted in his trial that was not admitted in Mr Coskun’s trial and vice versa. I am presently required to confine my consideration and judgment to evidence that was admitted in Mr Batak’s trial.

  10. Mr Batak’s accessorial liability arose from his provision of a handgun and a “hi vis work shirt” to Mr Coskun a few hours before the home invasion at Five Dock. He was subsequently recorded saying that the gun was a “mini-Glock” with an “extended clip”. [7] Ten fired cartridge cases from the rounds discharged by an intruder were found to have a rectangular “Glock-type” firing pin impression.

    7. Exhibit BP, pp 4 & 6

  11. In sentencing Mr Coskun, despite submissions to the contrary, I found beyond reasonable doubt that both intruders were armed with a handgun and that it was Mr Coskun who fired the ten .40 calibre rounds. [8] There was the same basis for this finding in the evidence before the jury in Mr Batak’s trial; indeed, the Crown made that argument in closing address. [9]

    8. See R v Coskun (No 5) at [32]-[37]

    9. 12.5.22, T1191-2

  12. I make the same finding in Mr Batak’s case that both intruders were armed and that it was Mr Coskun who discharged the firearm, fatally wounding John Odisho and twice wounding Sargon Odisho. The inference that he was the shooter is even stronger with the additional evidence in Mr Batak’s trial that Mr Batak had provided Mr Coskun with a mini-Glock. However, in Mr Batak’s trial it was not necessary for the jury to determine which intruder fired the ten rounds; it was simply necessary that they were satisfied beyond reasonable doubt that the accused realised, at the time he provided the assistance to Mr Coskun, that the discharge of a gun was a possible occurrence in the attempt to commit the armed robbery. Mr Batak’s culpability, both legal and moral, is the same whichever of the intruders fired the fatal shot.

  13. Mr Coskun and the other intruder fled via the balcony and ran to their respective cars to make their getaway. Mr Coskun rang Abdulsamed Sari and arranged to meet him at Auburn Hospital. When he arrived at Auburn Hospital he left his gloves, hi-vis shirt, black jumper and shoes in the car, as well as his Ciphr phone and another mobile phone. He left the key to the car on the rear nearside tyre and entered the hospital without any identification.

  14. Mr Sari went to the hospital and asked to see Mr Coskun, however police prevented them meeting. Police soon found the car parked outside with the incriminating items inside. Mr Sari later saw Mr Coskun after he was transferred to Westmead Hospital. He contacted Mr Batak and met with him later in the day.

  15. On the afternoon of 2 April 2019, Mr Batak turned his phone off. He met with Mr Sari and another man. He subsequently told one person that on that day he was “cleaning the house” and another person that he was “emptying out the house”. [10] There is merit in the Crown’s submission that he was referring to having removed incriminating evidence and firearms from his home. [11]

    10. Exhibits BX p 9; BZ p 14.

    11. Crown “Facts Contended For Sentence After Trial”, p 12

  16. I am satisfied beyond reasonable doubt that Mr Batak would have realised at the time he supplied a gun to Mr Coskun for use in the proposed robbery that it would be used, if necessary, to overcome any resistance by an occupant of the home. Mr Batak had some knowledge about the commission of “drug rips” involving significant quantities of drugs and/or money. He was captured discussing proposed drug rips in intercepted telephone conversations that occurred in weeks and months following the incident at Five Dock. One venture he discussed concerned a “florist” and involved a sum of $300,000, and another related to 2 kg of drugs in the possession of a Persian person who sent amounts of $100,000 overseas at a time. A component of the discussions was an assessment of the risks involved if the targeted premises were occupied. The conversations indicate Mr Batak and the other speaker were astute to consider the prospect of violence that might be encountered. Naturally, they would not pursue a prospective target if the risk was too great.

  17. I am satisfied that Mr Batak was acquainted with quite some level of detail of the home invasion that Mr Coskun was proposing, including that the proceeds were likely to be sizeable. (They were, but there is no evidence that Mr Batak was aware of the fact that there were drugs worth close to half a million dollars in the apartment at Five Dock.)

  18. Police covertly recorded conversations involving Mr Batak in the months up until his arrest on 21 August 2019. This provided the material upon which the Crown relied to establish a tendency “to plan and participate in the robbery of drugs from others being held in safehouses (colloquially known as ‘drug rips’) for the purpose of profit”. The recordings also provided admissions made by Mr Batak to others that established the Crown case at trial. They included the following.

Listening device recorded conversation with Daniel Prasad on 23 May 2019 [12]

12. Exhibit BN

  1. Mr Batak and Mr Prasad discussed the case against Mr Coskun, the fact that the other offender had not been caught and the fact that the police could not prove that Mr Coskun was the actual shooter. Mr Batak said he was not sure if the police had found the “gat” (conceded to be a slang term for a gun).

Listening device recorded conversation with Dogukin Yalim and Engin Karaman on 28 June 2019. [13]

13. Exhibit BP

  1. Both of these persons engaged in a conversation with Mr Batak on this date but often it was not possible to distinguish a speaker as being one or the other of Messrs Yalim and Karaman. [14]

    14. Evidence of Detective Sergeant Phillips, T714.5

  2. The Crown tendered on sentence, but not at the trial, an extract from this conversation that involved Mr Batak speaking of an occasion in the past when “we done a job and there was a couple, Beretta, bag full of rifles, small ones, whatever and left it in the garage …”. In a passage that was in evidence at the trial, when the subject turned to “what happened to Cengiz”, Mr Batak told the others about how it had been intended that he was going to go with him:

“Alright, this I’ll tell you exactly what happened. Cengiz came to my house. … He called me up. At the time I swear to God, I was dead broke. I need money, and he knew it, so he came … I had two [guns] at home. Yeah, he asked please can I take one. … I gave it to him yeah … You know the one I gave him, extended clip.”

(The word “guns” does not appear in the police transcript. The defence took issue with the accuracy of some aspects of the transcripts and their translations at trial. In his closing address to the jury, Mr Hughes, counsel then appearing for Mr Batak read in the word “guns”. I am not sure whether that was a reflection of the defence version of the conversation, or just a mistake.) [15]

15. Defence closing address, T1368.40

  1. Mr Batak proceeded to relate how Mr Coskun was explaining the “intel” that he had about the target of the robbery. It included Mr Batak saying:

“So, there’s two of them explained everything cuz. I go, ‘Alright’. He goes, ‘Let’s go together’ and he goes, ‘It’s easy’. Please explain. He goes, ‘We just go up the balcony, on the ground floor’, and he goes, ‘The doors open we’ll go straight in’, yeah, ‘In and out nice and quick’. I promise to God I was there for about 10 minutes, in my garage, cause he asked me for fluro’s as well. I gave him my work shirt. He’s wearing my work shirt …”.

  1. Mr Batak went on to describe the shirt in a way that matched the one worn by Mr Coskun during the robbery and later recovered from his car outside Auburn Hospital. He repeated how he was attracted to the idea of going with Mr Coskun to participate in the robbery because he needed money. He then claimed that he made an excuse and declined to go. (Whether the excuse was actually made, and whether it was truthful, is beside the point.) He then said, “there he was calling someone else and he goes, ‘Don’t worry, I’ve got someone else’. He goes, ‘I’ll get something out of it and I’ll bring it to ya’.”

  2. A short time later, Mr Batak reiterated that he had given Mr Coskun “a Glock”, a “mini Glock”. He also reiterated:

“I promise to God, I do, I was gonna go, yeah. I was this close, literally this close. I was getting ready, we were gonna go we loaded it up I got my clothes everything, we were gonna go.” (Emphasis added)

  1. I accept the Crown submission that this included a reference to loading the gun. Mr Batak made an attempt in his evidence on sentence that defies belief; he suggested it was a reference to loading up Mr Coskun’s car after he had emptied the contents over the floor of Mr Batak’s garage so he could throw some rubbish in the bin.

Listening device recorded conversation with Mr Batak’s wife, Ms Al Kahi, and Abdulsamed Sari on 17 July 2019. [16]

16. Exhibit BZ

  1. The main subject of this conversation was the police investigating Mr Batak in relation to the matter, e.g. “Cuz, they will watch, keep watching and keep listening until they find someone else”, and “until they find that second person, we’re all under the pump, we’re all gonna be watched and we’re all gonna be followed”. Presumably because the participants thought that police would only install listening devices inside the home, this conversation occurred outside in the area of a pergola and garage.

  2. Mr Batak told his wife and Mr Sari that he was told by Mr Coskun there were two people at the target premises. He was also told about entry being made via the balcony.

Listening device recorded conversation with Ms Al Kahi on 18 July 2019 [17]

17. Exhibit CF

  1. This conversation was part of a series in which there was discussion between Mr Batak and his wife about the police investigation of the robbery and concern expressed about Mr Coskun having worn Mr Batak’s high visibility Quantum Transport work shirt. Mr Batak appeared to be reassuring Ms Al Kahi that he would not get into trouble. At one point she asked, “what about when they find the gun. What happens then?” He reassured her in relation to this by telling her, in effect, that it had been completely wiped down before it was given to Mr Coskun. In other words, no fingerprints or other forensic evidence linking it to Mr Batak would be found by police.

Listening device recorded conversation with Mr Erhan Akdeniz on 2 August 2019 [18]

18. Exhibit CO

  1. This conversation also took place at Mr Batak’s home in the pergola/garage area. He told Mr Akdeniz:

“Cuz, I already know what to say. He called me just before he went and done the job. There’s a phone call there. … he came, he saw me, I gave him the gun, he took my gun. …

He came. He seen me, we spoke. I was the last person he called. And then he took my gun, I gave him my gun, he took that. And he took, ah, I gave him the shirt. There was five of them, I gave him two …”

  1. The conversation continued with discussion of the police interest, culminating in Mr Batak saying:

“You know how they can get me? That I gave it? About two three days before I gave it to him, my dad cleaned the shit out of that gun.”

  1. The references to “my gun” and to Mr Batak giving it to Mr Coskun contradict Mr Batak’s case, that it was Mr Coskun’s gun that Mr Coskun took back from Mr Batak’s garage after Mr Batak had foolishly stored it for him for a few weeks in order to assist his friend, Mr Sari, who was unhappy about the bag with the guns being stored at his premises. (More detail of this version appears below (at [54]ff).) Mr Batak gave the incredible explanation to a psychologist, Ms Alison Cullen, that “it was easier to refer to them as my guns rather than describe how they came to be with me from the BBQ”. [19]

    19. Cullen report, tender bundle p 8

  2. It was common ground that Mr Batak did not know who the unknown male was who became Mr Coskun’s accomplice at Five Dock. Despite defence counsel repeatedly emphasising in his closing address a supposed significance of Mr Batak not knowing who the man was, the fact is that nothing turned on it in terms of Mr Batak’s liability for conviction, and nothing turns on it now for sentencing purposes.

  3. In addition to the provision of a gun, Mr Batak also intentionally assisted Mr Coskun in relation to the proposed robbery by providing him with a particular shirt that he wanted. Mr Coskun requested Mr Batak by WhatsApp messages sent at 1am on 2 April 2019 to bring two hi-vis work shirts. Mr Batak once worked as a sub-contractor for a business called Quantum Transport Solutions and was provided with yellow high visibility short-sleeved work shirts. [20] Mr Coskun wore one of these shirts during the robbery, and it was found soon after in his car with shotshell damage to the left flank. There was evidence in the covertly recorded conversations that amply proved that Mr Batak had provided the shirt as Mr Coskun had requested. [21] It was not established whether he knew why Mr Coskun wanted to wear such a shirt, but that was of no consequence. The fact is that Mr Coskun asked for a particular shirt, clearly in connection with the proposed armed robbery, and Mr Batak provided him with it.

    20. 27.4.22, T488-491

    21. For example, Exhibit CO, (p 3)

  4. Counsel for Mr Batak tendered documents relating to a prosecution of Shahoo Karimi. [22] The Crown objected to the tender. I merely wish to record that I uphold the objection on the basis of relevance.

    22. Annexures B and C to the affidavit of Ms J Fahmy of 1 September 2022

Disputed facts

  1. There was an issue at the trial as to whether Mr Batak gave to Mr Coskun one of Mr Batak’s guns, as he said repeatedly in the covertly recorded conversations. The defence case at trial was to the effect that Mr Batak had agreed to store guns belonging to Mr Coskun in his garage. On the night in question Mr Coskun had attended and, unbeknown to Mr Batak, he had retrieved his gun(s).

  2. Mr Batak did not give evidence at the trial but relied upon the evidence of Abdulsamed Sari. Mr Sari gave evidence that some weeks before the murder he had become aware that there was a bag at his house containing two guns and they belonged to Mr Coskun. Mr Sari wanted them out of his house, but Mr Coskun refused to take them. There was a conversation at a barbecue at the home of a mutual acquaintance, in which Mr Batak agreed to store them on the proviso that the guns were not loaded. Mr Sari took the bag to Mr Batak’s house. When Mr Sari was summoned by Mr Batak to come and talk to him on the afternoon of 2 April 2019, Mr Batak told him about Mr Coskun having attended his place in the early hours of that day. He said Mr Coskun took the bag of guns from the garage and while Mr Batak had gone upstairs to his unit to use the toilet, Mr Coskun had left. [23]

    23. 4.5.22, T793; 817

  3. In his case on sentence, Mr Batak relied upon an augmented version of this which was conveyed through the history he gave to his psychologist, Ms Cullen; a handwritten letter by himself; an affidavit by his father (who was unavailable for cross-examination); and sworn evidence given by himself at the sentence hearing. [24] I assume reliance is also still placed upon the evidence given at trial by Abdulsamed Sari.

    24. The first three items in Exhibit 1 on sentence; the latter at 5.9.22, T16.48-33.24

  4. Briefly, the version was that when Mr Coskun was at Mr Batak’s garage in the early hours of 2 April 2019 he retrieved his guns, saying he had another place to store them. He also alluded to entering and taking something of value from a place in Five Dock, which Mr Batak claims to have counselled Mr Coskun against. He claimed to Ms Cullen that he said to Mr Coskun, “I said, ‘I don’t want no part of it’ … once he saw the way I was reacting he backed off”. [25] Of course, this conflicts with what he was recorded as having said on 28 June 2019 about being motivated to join the enterprise because he was in need of money and only decided not to because of an urgent need to go to the toilet.

    25. Cullen report, tender bundle p 8 (3rd para). See similarly, 5.9.22, T31-32

  5. An affidavit sworn by Mr Batak father’s, Faruk Batak, was relied upon as supporting this version, but was contrary to a more contemporaneous denial to police. [26] In a conversation with detectives on 21 October 2019, Mr Faruk Batak was told that police were investigating evidence that he had cleaned a firearm which his son had later given to Cengiz Coskun and which was used in the murder. This must have been a reference to the covertly recorded representation made by Cem Batak on 2 August 2019: “You know how they can get me? That I gave it? About two three days before I gave it to him, my dad cleaned the shit out of that gun.”. [27] Faruk Batak denied to police that he had ever cleaned a gun or had ever seen his son in possession of a firearm. He also said he had never seen a firearm inside their unit or garage.

    26. Statement of Detective Sergeant Phillips 16 August 2022 (at [5]) and see annexed investigator’s notes.

    27. Exhibits CN/CO

  6. Mr Faruk Batak contradicted that version almost three years later. In an affidavit sworn on 27 June 2022, at which time his son had been found guilty and was awaiting sentencing, Mr Faruk Batak claimed to have stumbled upon a gun in a bag in the garage while looking for shaving equipment. He wiped it with a cloth because he had touched it. He put it back in the bag. He later remonstrated with his son about returning it to the “friend” who owned it.

  7. Mr Batak gave evidence on sentence consistent with the version in his father’s affidavit. [28]

    28. 5.9.22, T27

  8. This version of Mr Batak having stored guns for Mr Coskun, must be rejected for a number of reasons, primarily because it is inherently implausible.

  9. The Crown Prosecutor made compelling arguments about the evidence of Abdulsamed Sari in her closing address to the jury. Further matters emerged during the sentence hearing directed to both the evidence in the trial and the additional evidence on sentence. I will refer to just a few.

  10. Mr Batak claimed he offered to receive Mr Coskun’s guns for temporary safekeeping because he was concerned about his friend, Mr Sari, getting into trouble if they were found in his possession. He knew Mr Coskun had been to gaol but claimed that he did not know what for. Further, he did not ask Mr Coskun why he had the guns, where he got them from, what kind of guns they were, or whether they had ever been used in illegal activity. He gave evidence that Mr Coskun said he needed someone to keep the guns because he had a firearms prohibition order (FPO). Mr Batak did not ask him why he had guns while he was subject to an FPO. Mr Batak knew what an FPO was; he had friends who had them. It did not alarm him that he was agreeing to help someone to evade detection for breaching their FPO. [29]

    29. 5.9.22, T19-20; 6.9.22, T50-2

  11. There was no challenge to evidence tendered by the Crown that Mr Coskun had never had an FPO. [30]

    30. Statement of Detective Sergeant Phillips, 16.8.22

  12. It strains credulity that Mr Batak was concerned about Mr Sari getting into trouble if he was caught in possession of guns, but he was not concerned about himself getting into the same sort of trouble. When this was suggested to him, he gave a rather flippant and senseless response: “I wasn't planning on being caught with the guns”. [31]

    31. 6.9.22, T52-4

  13. Intertwined with the account of receiving Mr Coskun’s guns was an attempt to provide innocent explanations for incriminating representations made in the covertly recorded conversations tendered at the trial. An example of this is the assertion made in the recordings that he had provided Mr Coskun with a Glock pistol. This raised a question as to how he would know the make of pistol if it was one that he had no personal interest in, and one that was in a bag that he was just storing. Mr Batak’s version in his sentence testimony was that after Mr Sari delivered the guns to him in a bag, he did not remove them from the bag but just opened it and looked inside. He saw there were two guns and the top one “looked like” a Glock. There was then a multi-faceted and evolving attempt to justify how he could possibly have made this assessment, but it was ultimately incapable of belief.

  14. At first, Mr Batak said it looked like a Glock because it was black. He then added that he had “been around guns a fair bit” because friends and family had firearms licences. When this was tested, it emerged that he was referring to friends who had only held licences in respect of rifles and shotguns, and a cousin who had a target pistol licence that expired in 1999 (when Mr Batak was aged 7). Evidence tendered after the hearing added that the cousin also held a pistol licence, although it had expired 11 years previously (2008). However, regardless of what licences this person had held in the past, Mr Batak’s evidence at the sentence hearing was that he had only ever seen him with rifles and had never seen him with Glock pistols.

  15. Mr Batak was reminded that in the conversation on 28 June 2019 he had described the gun as a “mini-Glock”. When asked how he knew that it was a “mini”, he replied to the effect that he thought all Glocks came in that size. The Crown Prosecutor asked him who had ever shown him a Glock before, and he said, “Nobody”. He maintained that he thought it was a Glock because it was black but then volunteered that he had seen Glocks “on TV, on movies, on shows … on screen”. When challenged further, he added that he could have seen a subcompact or mini-Glock in a magazine or a catalogue and identified it on that basis. He later said that although he could not recall any particular movies or shows where there had been a gun identified as a Glock, it might have been in a YouTube video on firearms, or a show specifically about weapons and guns. [32]

    32. T22; 58-64; 129-131. See also affidavit of Ms Fahmy 10.9.22 and annexed photographs of Mustapha Batak in disturbing displays of handling a revolver and other handguns in an apparent domestic setting.

  16. Mr Batak sought to provide an innocent explanation for the representation, “we loaded it up” in the conversation of 28 June 2019, but the explanation was simply preposterous. In his evidence in chief he said he went up to his unit to go to the bathroom and to get the shirts Mr Coskun had requested. He continued: [33]

“I went back downstairs to see him and when I went downstairs, I seen that he was, he was emptying out his car. He had the doors open, had the boot open. It was odd. He had floor mats - everything laid out across the garage floor. …

I was upstairs for - I was up there for about 5, 10 minutes. By the time I came back down, that's when I seen inside his was laid out in front of the garage floor. He had clothes; he had shoes. There was a few bags. I seen the bag with the gun, as well. I seen it all just laid in front and I realised he was, um, cleaning out his car. He was throwing rubbish into the bins.

Q. The bins around your parents' house?

A. An apartment, yeah.

Q. Did you ask him why he was cleaning out his car?

A. It didn't seem odd to me at the time.”

33. 5.9..22, T30

  1. He was challenged about this in cross-examination: [34]

    34. 6.9.22, T78-9

Q. You gave some evidence that when you came downstairs after having gone upstairs, that Mr Coskun had emptied out the contents of his car on the garage floor and was also getting rubbish out of his car. Do you remember giving that evidence?

A. Yes, he was cleaning out his car.

Q. Did it strike you as odd that he would choose sometime after midnight in your driveway area to clean out his car?

A. To be exact, he was in front of the garage underneath the building, so he was out of the driveway, and it wasn't unusual for someone to throw rubbish out of their car into the bins. It doesn't matter regardless of the time of night.

Q. So he was parked inside or half inside your garage. That's what you're saying?

A. No, the front of the garage.

Q. See, Mr Batak, I'm going to suggest to you that you have invented this part of this exchange with Mr Coskun so that you can give an explanation as to why you said to Yalim and Karaman that you "loaded it up", haven't you?

A. No, that's incorrect.

Q. And that when you told Yalim and Karaman about "loading it up", that was a reference to loading a gun, wasn't it?

A. That's also incorrect.

Q. Mr Coskun wasn't there in your garage getting rid of rubbish, was he?

A. Yes, he was.

…

HIS HONOUR:

…

Q. Why was he getting - having all of the contents of his car laid out on the garage floor his clothes and his shoes and bags and things like that. Is there any reason apparent to you why he would be doing that?

A. I just thought he wanted to take everything out of the car before he started cleaning the car. I didn't ask him why he'd done that.

TRAYNOR

Q. You said that he took the car mats out of the car?

A. Correct.

Q. Did he vacuum them?

A. No.

Q. So, did he give you any explanation as to why he needed to remove everything from his car?

A. No, he didn't.”

  1. A further reason Mr Batak’s version must be rejected is that it is contrary to his repeated assertions in the covertly recorded conversations that he “gave” Mr Coskun “my gun”, which he described in detail and specified that it was a gun his father had “cleaned the shit out of”. I have previously mentioned Mr Batak’s claim to Ms Cullen that “it was easier to refer to them as my guns rather than describe how they came to be with me from the BBQ” which cannot be accepted.

  1. Another representation made in the covertly recorded conversation on 28 June 2019 that Mr Batak sought to explain was that he had supplied Mr Coskun with a gun with an “extended clip”. [35] This was significant in that the Crown contended at trial that it supported the proposition that the gun was loaded when provided to Mr Coskun. [36] I do not accept Mr Batak’s evidence on sentence that when he opened the bag to see what was inside, he saw an item on top of the black gun that was “an extended clip”. [37] Upon being challenged about this in cross-examination, he explained that it was “bigger than the handle of the gun which made me assume it was an extended clip”. [38] This, along with his ensuing attempt to justify his assumption, did not reflect well on him or the veracity of his testimony.

    35. Exhibit BP (p 4)

    36. 12.5.22, T1214.30

    37. 5.9.22, T23.22

    38. 6.9.22, T60.2

  2. Mr Batak’s version is also problematic in that it conflicts with elements which the jury decided beyond reasonable doubt adversely to him. I am required to act upon the jury’s verdict.

  3. Finally, Mr Batak’s credibility was seriously damaged by concessions made in evidence that he was engaged in serious criminal activity. He said he was involved in discussing with Mr Coskun how he could assist him in the disposal of parts from a stolen car. [39] He accepted he was recorded in a conversation on 13 June 2019 talking about someone being “strapped” and about people being “popped”, “capped”, “blasted” and “pumped”, references that he conceded were to firearms. [40] He stated that “cunts get buried for less”. He also conceded involvement in some vague but clearly illicit involvement in drug supply or manufacture. There were references to “our product” and dealing with “G”, which he conceded was a reference to the drug known as “GBL”. This conversation also indicates a familiarity with the concept of “ripping”; [41] an allusion to a “drug rip”, the term used by the Crown to describe the criminal venture which led to the events the subject of this case. There are more examples of these types of disclosures. It is unsurprising that counsel for Mr Batak abandoned a submission that good character was a mitigating factor. [42] Unless supported by independent credible evidence, it is difficult to accept anything said by a person with such criminal interests.

    39. 5.9.22, T24; 6.9.22, T64; 75

    40. 6.9.22, T112

    41. For example in relation to a person referred to as Rami who had been “ripped” (T112-3)

    42. 7.9.22, T124.25, 143.15, 144.28, 147.15

  4. I am satisfied beyond reasonable doubt of the version of events advanced by the Crown, namely that Mr Batak supplied a pistol that was in his possession to Mr Coskun. The alternative version that it was a gun Mr Batak was merely storing for Mr Coskun has been completely discredited.

  5. Based upon the covertly recorded conversations, I am also satisfied that the gun was supplied with an “extended clip” and was “loaded up”.

Objective seriousness

  1. It was uncontroversial between the parties that the criminality of an accessory before the fact is fixed at the time of commission of the act(s) rendering the person liable as such an accessory. [43] There was, however, still debate as to whether aspects of what occurred at the commission of the crime also bore upon the objective seriousness of Mr Batak’s offending. For example, there was uncertainty about the significance of whether it was Mr Coskun or the unknown intruder who fired the .40 calibre rounds.

    43. Defence written submissions at [20]; 7.9.22, T158

  2. It may be accepted that Mr Batak did not intend that anyone would be shot at the time he provided the gun to Mr Coskun. Nonetheless, provision of a loaded self-loading pistol for use in a “drug-rip” style home invasion armed robbery constitutes criminality of a high order. Mr Batak enhanced the firepower of the weapon by providing it with an “extended clip”. The fact that the target was a drug dealer, and the intended proceeds were drugs and/or money, meant that there was a significant possibility of resistance. In that event, there was a strong possibility that the pistol could be discharged, the consequences of which could be fatal.

  3. I am satisfied beyond reasonable doubt that Mr Batak was aware of these potential consequences. His covertly recorded conversations in the weeks and months that followed betray that awareness.

  4. I accept the significance of the fact that there was no actual intention by Mr Batak that the gun be fired, nor was there an intention or any foresight on his part that it would be fired with an intention to kill or to inflict grievous bodily harm. However, the rationale for the constructive basis of murder is that legal culpability should lie equally for those who are responsible for a death occurring during the commission of a very serious offence as it does for those who kill with an intention of causing death or grievous bodily harm.

  5. It has been held that it is not necessarily the case that constructive murder is less serious than murder committed with intent to kill or cause grievous bodily harm: R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452 at [332] (Wood CJ at CL [332].

  6. R v Mills (Court of Criminal Appeal (NSW), 3 April 1995, unrep) concerned an attempted armed robbery at a liquor store by an offender who was armed with a shortened shotgun. Cole JA described what happened:

“His Honour found beyond reasonable doubt that the weapon discharged when the trigger was pulled by the appellant in the excitement or panic of the moment when, in an agitated and nervous state, he was endeavouring to persuade the deceased to hand over the contents of the cash register, by means of the shotgun levelled and held close to his torso. His Honour also found that the appellant had deliberately and consciously brought to the scene of the crime and presented to the deceased a weapon in a loaded state, in pursuance of a design to commit an armed robbery and in circumstances where resistance or spontaneous or unwilled discharge of the weapon must have been in contemplation.

In those circumstances the learned trial judge found and convicted the appellant of felony murder. It is apparent, from what I have said, that the objective circumstances of the crime are of a most serious nature.”

  1. Gleeson CJ agreed and added:

“The major premise underlying the argument of counsel for the appellant was that cases of felony murder involved a lower level of culpability than cases of murder involving intention to kill and therefore should receive a lower level of sentence than applies to intentional killing.

I would reject that premise. Indeed, it would be difficult to select a better case than the present for the purpose of demonstrating its falsity. This was a case where a young man with an appalling history of criminal offending used a loaded gun in an armed robbery. He came to close quarters with the surprised victim. As is highly likely to occur in such circumstances, the weapon discharged. For the sake of the appellant's determination to get his hands on a few hundred dollars, an innocent person lost his life. This is a case of murder involving a very high degree of seriousness.”

  1. The jury were not required to be satisfied beyond reasonable doubt that Mr Batak was aware that a gun would in fact be discharged during the attempted armed robbery. It was sufficient for the Crown to prove that, when providing the assistance that rendered him an accessory before the fact, Mr Batak was aware that this was a possibility. The provision of a handgun for use in an attempted armed robbery with this awareness is a crime of considerable seriousness.

  2. It must be acknowledged, however, that as he was not at or anywhere near the crime scene, Mr Batak had no control over or input into what eventuated. His criminality is to be assessed on the basis of what he did and what he knew or foresaw as a possibility at the time he provided the assistance constituting him as an accessory before the fact. That is only subject to the fact that he is also liable for what actually occurred, principally that John Odisho was killed.

  3. The jury found that Mr Batak foresaw the possibility of the gun being discharged. I am satisfied that he was aware that the intended victim of the proposed robbery was a criminal involved in drug dealing who would not willingly hand over his drugs or money. Having regard to this, coupled with the nature of the gun Mr Batak provided (including that it was loaded with an extended clip), the prospect of serious harm being caused must also have been foreseen.

  4. I am also satisfied that Mr Batak knew Mr Coskun was proposing an armed home invasion that would be committed by two offenders. Initially the second offender was to be Mr Batak but after he changed his mind about participating, and before Mr Coskun departed his home, he was aware that another person had been engaged to take his place. Mr Batak did not seek to withdraw his assistance, nor did he counsel Mr Coskun to desist after he had told Mr Batak that he had found someone else (and that Mr Batak would still “get something out of it”). [44]

    44. Exhibit BP (p5)

  5. The evidence does not establish that Mr Batak knew who the second offender would be, or that he would also be armed, but that does not diminish his culpability.

  6. There were submissions about the absence of some matters that would or may otherwise have aggravated the seriousness of Mr Batak’s offending. The degree to which he was aware of or involved in the planning and surveillance that was carried out on the Five Dock premises prior to the attempted robbery is not clear. The evidence raises a suspicion about a series of contacts and meetings with Mr Coskun, but it does not go further than that. This issue is not aggravating but nor am I satisfied on the balance of probabilities that it is a mitigating factor.

  7. A point that was repeated a number of times in the submissions for Mr Batak was that the meeting with Mr Coskun at Mr Batak’s home in the early hours of 2 April 2019 only lasted for about 10 minutes; that is, it was not very long. When it was suggested to counsel that whether it was 10 minutes or 30 minutes did not seem significant, he accepted “that may well be so”. [45] I remain of that view, but the observation must be made that it would not have taken all that long for the pair to discuss the details of the proposed robbery if it had been the subject of previous conversations. Further and ironically, Mr Batak’s version of events, which I have largely rejected, is to the effect that Mr Coskun must have been at Mr Batak’s home that morning for more than a mere 10 minutes.

    45. Defence written submissions [9](ix), [33], [43]-[47]; 7.9.22, T137

  8. The finding I have made, that it was Mr Coskun who fired the shots that killed John Odisho and wounded Sargon Odisho as opposed to the unknown intruder, has little, if any, bearing upon the seriousness of Mr Batak’s crimes (despite the submission of counsel for Mr Batak that it would operate in aggravation [46] ). Mr Batak’s accessorial acts, his intention, his contemplation, and his overall culpability for assisting in the commission of an armed and violent home invasion are the same no matter which of the two intruders fired the shots.

    46. 7.9.22, T134-5

  9. It was contended on behalf of Mr Batak that he did not stand to gain anything from the robbery. [47] That issue is neutral as I am not satisfied of this contention on the balance of probabilities. It seems reasonable that he did not do what he did for nothing, but I am not satisfied of that beyond reasonable doubt.

    47. Defence written submissions [9](xiii)

  10. There may not have been an attempted armed robbery, with a wounding and a killing occurring in the course of it, had Mr Batak declined to supply a loaded pistol to Mr Coskun. As I have described above, I am satisfied that Mr Batak appreciated the risks at the time he supplied the weapon. This crime of being an accessory before the fact to murder is above the mid-range of objective seriousness. It is, however, a less serious crime than the principal offence committed by Mr Coskun.

  11. The same assessment of the level of objective seriousness (above the mid-range) applies to the offence of being an accessory before the fact to an attempted robbery whilst armed with a dangerous weapon. Mr Batak placed in the hands of the principal offender, Mr Coskun, the means by which he came to be armed with a dangerous weapon. It was “dangerous” in both the technical legal sense and, most obviously, in the practical sense. The jury were satisfied beyond reasonable doubt that Mr Batak intentionally assisted Mr Coskun knowing that he intended to steal property from someone by threat of force while armed with a handgun.

  12. More will be said later on the subject of whether the criminality of the accessory before the fact to the attempted robbery offence involved more than that which was subsumed within the accessory to murder offence.

Harm to others

  1. I reiterate in sentencing Mr Batak what I said in sentencing Mr Coskun. I acknowledge the traumatic experience of Ms Mitchell-Wiszniewski in being physically threatened herself but also in being present at the time John Odisho was violently murdered. I am also mindful of the wounding of Sargon Odisho.

  2. A statement by the father of John Odisho describes the grief and sadness of those who loved him and the suffering they endure as a result of his tragic and untimely death. Condolences are once again extended to them.

Background and personal circumstances

  1. Mr Batak was born in Australia in a Turkish family in 1992. He is the youngest of three children. His parents were older, worked hard and were not as available for their children as much as they might have wished to be. Mr Batak told Ms Cullen, psychologist, that he associated with older peers in his neighbourhood where there was a lot of drug use and fighting. [48]

    48. Cullen report, tender bundle, p2

  2. Both his parents suffered significant health issues in 2019 and it has fallen to Mr Batak’s sisters to care for them while he has been in custody. [49]

    49. Ibid, p2

  3. Mr Batak entered a relationship when he was in high school, and a son was born in 2013. The relationship broke down prior to the child’s first birthday. Mr Batak remained close to his son but there were arguments over custody issues. He achieved custody only a short time before his arrest for the index offences. He claims his former partner denied him any access for the next 18 months. He subsequently had AVL contact. [50]

    50. Ibid, pp2-3

  4. The child has been diagnosed with autism spectrum disorder and various aspects of this are described in Ms Cullen’s report and in a letter from the child’s mother, Hazel Jimenez. I accept that having only minimal contact with him is a source of distress and anxiety for Mr Batak. Ms Cullen also derives from the literature that there is potential for a longer term adverse impact upon a child with this condition. [51] The extent to which her discussion of this issue is helpful is limited by the fact she seems not to have had the opportunity to make a personal assessment of the child. Nevertheless, it seems clear that the impact upon the child is likely quite complex and Ms Jimenez’s description indicates it is beset by some very practical problems. (No specific submission was made about how this issue should be taken into account other than it being a part of the offender’s general subjective case.)

    51. Ibid, pp3,10

  5. Mr Batak met his present partner in February 2019 and they married in July, the month before his arrest. She is said to have “stuck by” Mr Batak for the first six months but she was then charged with concealing a serious offence and was not allowed to speak with him. She was also concerned with custodial issues concerning her own son. [52] The current status of the relationship is not clear.

    52. Ibid, p3

  6. Secondary education for Mr Batak ceased when he was expelled in Year 11 after acting out behaviourally. He found work as a handyman, in warehousing and as a forklift driver. He obtained a licence to drive trucks and began his own business in 2018. His truck was sold after he entered custody. [53]

    53. Ibid, pp3-4

  7. Mr Batak has no significant record of previous convictions; indeed, no prior convictions at all. His custodial history indicates no internal disciplinary infractions. He told the psychologist he had been appointed an Islamic delegate to liaise between inmates and officers and he had also mentored younger inmates. [54]

    54. Ibid, p4

  8. Mr Batak completed five months of a certificate course in personal training before COVID-19 restrictions intervened. He has attempted to gain access to other courses but COVID and being on remand have prevented this. He aspires to pursue further education so that he does not waste his time in custody. [55]

    55. Ibid, p4

  9. A letter from a prison chaplain attests to the diligence and responsibility Mr Batak has displayed in his work while in custody and the trust that he has of senior officers. It reflects positively on his rehabilitation prospects. Corrective Services NSW case notes (OIMS) provide some confirmation of Mr Batak’s good conduct (a threat to assault a potential cellmate excepted: “if you put him in here, I’ll pump him”). [56]

    56. Corrective Services Case Note Reports, tender bundle pp132-143, but see p141 entry of 6 June 2021

  10. Cannabis abuse arose in Mr Batak’s teenage years, but he ceased its use at age 18. He also gave up alcohol after the birth of his son. However, he was introduced to cocaine at age 23-24, and by the time of the offences he was using relatively small amounts of both cocaine and cannabis per week. He has remained abstinent since his arrest. [57]

    57. Cullen report, tender bundle, p4

  11. Psychometric testing by Ms Cullen did not reveal anything of particular relevance for present purposes. His risk of recidivism was assessed at a low order, and various protective factors are cited in support of his prospects of rehabilitation. [58]

    58. Ibid, pp5-6,10

  12. Ms Cullen did consider it likely that at the time of the offending Mr Batak was experiencing an adjustment disorder with a mixed disturbance of emotions and conduct, as well as comorbid substance use disorders (moderate cannabis use and moderate stimulant (cocaine) use). [59]

    59. Ibid, p9

  13. Ms Cullen also opined that drug use appeared to have contributed to poor decision making. This is based, however, upon an exculpatory version of events provided by Mr Batak, one that is inconsistent with the evidence at the trial, the verdicts of the jury, and my own findings of fact as set out above. [60] The same inconsistency affects Ms Cullen’s opinion that Mr Batak demonstrated “(genuine) shame and contrition for his involvement in the index offence (despite maintaining his innocence)”. [61]

    60. Ibid, p9

    61. Ibid, p10

  14. An affidavit by the offender’s solicitor includes material relating to the COVID-19 restrictions that have affected the conditions of the custodial environment during the pandemic era. They are matters that most inmates have had to endure and that render the experience of custody more onerous that it usually is. I have taken this into account.

  15. More detail of Mr Batak’s life story, including the difficulties he has faced and his various positive attributes, appear in the affidavit and letters from his sisters, niece, cousin-in-law, former partner Ms Jimenez, and others which I have read and considered.

Profound childhood deprivation?

  1. At the beginning of the Crown Prosecutor’s cross-examination of Mr Batak at the sentence hearing, he agreed unequivocally with a series of summary propositions about his background. [62] He was living with both of his mother and father at the time of the offence, and they had been loving parents as he was growing up. They were never violent towards him. His father worked, and at one stage had a business. His parents taught him the importance of work. He had jobs after he left school and was self-employed with his own truck at the time of the offence. He agreed he was able to manage his own affairs and he had been taught the difference between right and wrong by his family. He had a broad network of people that he knew, and he had friends and the support of people in the Turkish community. Mr Batak agreed that the choices that he made were his own and were not the product of any particular way that he had been raised.

    62. 5.9.22, T38-40

  1. In written submissions it was contended that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 had application in that Mr Batak’s childhood was disadvantaged. [63] However, there is a considerable difference between the circumstances of his childhood and that which were considered in Bugmy. Mr Woods had to concede at the sentence hearing that “this is [not] a profound disadvantage case”. He maintained, however, that “the proper way to approach that is to infer that my client, certainly by the time of his 20s, had some associations that were not good for him”. [64] That observation is perfectly correct, but it is not a matter of mitigation.

    63. Defence written submissions [79]

    64. 7.9.22, T145-7, 148.45

Youth

  1. Another contention advanced in the written submissions was that Mr Batak’s “youth” should be taken into account because he was 26 years of age at the time of the offending. When asked about that submission at the hearing, Mr Woods responded: “It may be that it is not a matter of very significant discrete weight, but it is part of the general subjective circumstances that he is a young, Middle Eastern man, mid 20s, background certainly not one of profound deprivation or disadvantage … but … he is someone whose background, to some degree, explains why he might have been involved with persons like Mr Coskun”. [65] These are matters that describe aspects of Mr Batak’s life but they have little, if any, practical impact upon the assessment of sentence.

    65. 7.9.22, T145-6

  2. An allied submission was that the evidence demonstrated that Mr Batak acted naively and with a degree of immaturity. [66] I am not persuaded that is so.

    66. 7.9.22, T145

Drug addiction

  1. Mr Woods also contended in writing that drug addiction was relevant to the assessment of the objective seriousness of the offences. Some reliance is placed upon the opinion of Ms Cullen, but as I have indicated, it is an opinion based in part upon Mr Batak’s account of his offending that I have rejected. For example, she wrote: “The nature of his drug use appears to have contributed to poor decision making insofar as offering to store the bag as well as the ‘shit talk’ he engaged in with associates related to the possession and ownership of the guns”. [67]

    67. Defence written submissions pp35-36

  2. I accept the evidence given by Mr Batak as to his background, including that he had been employed since leaving school and at the time of the offending operated a truck driving business. It does not appear that his life was so adversely affected by drug addiction that he was making poor decisions that led to his offending. It is not necessary to discuss whether counsel’s submission is soundly based in principle except to say I am dubious. It must be rejected because it is not supported by the facts.

Remorse

  1. Ms Cullen reported that despite maintaining his innocence, Mr Batak had told her: “I do feel remorseful”. She does not report him saying anything by way of acceptance of responsibility for the tragic consequences of what occurred. To the contrary, he told her things such as, “I was trying to help someone and I’ve lost everything over this”. [68] There is also a report of perceived remorse in a letter from Ahmed Kilani, the prison chaplain. Unfortunately what Mr Kilani wrote is so broad that it is hard to make a useful assessment of it.

    68. Cullen report, tender bundle p9 (1st para)

  2. Mr Batak said in his evidence on sentence that he felt terrible and sad for John Odisho. [69]

    69. 5.9.22, T35.10; 40.45

  3. Counsel for Mr Batak accepted that there would not be “some unqualified finding as to remorse” but submitted that he had shown insight into the poor choices that he made and had shown a capacity for empathy. [70] The difficulty with this is untangling it from the continued maintenance of a false version of events first advocated to the jury through the testimony of Abdulsamed Sari, and again advocated for by Mr Batak at the sentence hearing. I accept that Mr Batak is regretful to some extent. How much of it is a genuine emotion arising from the death of John Odisho as opposed to concern about the predicament Mr Batak finds himself in is difficult to know.

    70. 7.9.22, T144.35

Delay

  1. It was submitted that the three years that have elapsed since the offending is a further mitigating factor. The only specific way in which it was said to be so is because Mr Batak has throughout that period been held in the more restrictive confinement of remand. The period of time that this case has taken to be finalised is not out of keeping with the general experience through the pandemic period, but it is nevertheless a matter of some mitigating weight.

Special circumstances

  1. It was submitted that there should be a finding of special circumstances so as to vary the ratio between the head sentence and the non-parole period. It was contended that the special circumstances were (a) this was Mr Batak’s first time in custody; (b) during his confinement he has not incurred any disciplinary infractions and has been a well-behaved, productive, and compliant inmate; and (c) a longer period of supervision on parole would foster his further rehabilitation in various ways.

  2. The first two matters augur well for Mr Batak’s prospects of rehabilitation. Under the terms of the sentence I propose there will be ample opportunity for supervision to assist him in establishing a productive and law-abiding life if that is the path he chooses to take.

Other matters relevant to the assessment of sentence

  1. It is necessary to have regard to the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act. General deterrence is particularly important in relation to crimes of violence involving the use of handguns. It is also important to provide adequate punishment for and denunciation of the offending conduct, and to make Mr Batak accountable for his actions.

  2. Rehabilitation of Mr Batak is an important matter as well. It is to be hoped that the progress he appears to have made in custody to date will continue. I have taken this progress and potential into account, but I am unable to find in mitigation that his prospects of rehabilitation are “good” (let alone “very good” as was submitted by Mr Woods [71] ). Nor can I find that he is unlikely to re-offend. [72] My view on this is largely a result of the revelation in his evidence on sentence of the previously undisclosed extent of his criminal interests. The sources of evidence reflecting positively on these subjects (Ms Cullen, the offender’s various family members and friends, and the prison chaplain) have obviously not factored this into their opinions.

    71. Final defence written submissions, 11.9.22, [9]

    72. Crimes (Sentencing Procedure) Act, s 21A(3)(g) & (h)

  3. In sentencing Mr Coskun I referred to there being additional criminality in the attempted robbery offence, primarily by virtue of it including that Sargon Odisho was shot twice in the arm. In sentencing Mr Batak, however, I am not persuaded there is any additional criminality; it is entirely subsumed within the criminality involved in the accessory before murder offence. It was not a requirement for the jury to determine whether Mr Batak contemplated the possibility of anyone being wounded during the attempted robbery, so I am doubtful about imposing additional punishment in respect of it.

  4. In applying the principle in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [49] (as reviewed recently by Beech-Jones CJ at CL in Darcy v R [2022] NSWCCA 54 at [9]) and to avoid double punishment for the attempted robbery which was also the foundational offence for the murder, I propose to assess a sentence for the attempted robbery offence that is nowhere near what would normally be appropriate if sentencing for that offence alone. It will be a fixed term of imprisonment because there is no utility in nominating part of it as a non-parole period.

  5. Mr Batak was arrested on 21 August 2019 and has been held in custody since. His sentence will be backdated to allow for this.

Sentence

  1. Convicted.

  2. Accessory before the fact to murder: Sentenced to a term of imprisonment comprising a non-parole period of 10 years and 6 months with a balance of the term of the sentence of 3 years and 6 months. That is a total sentence of 14 years. The sentence is to date from 21 August 2019 and expire on 20 August 2033. The non-parole period will expire on 20 February 2030 whereupon the offender will become eligible for release on parole.

  3. Accessory before the fact to attempted robbery whilst armed with a dangerous weapon: Sentenced to a fixed term of imprisonment of 2 years dating from 21 August 2019 and expiring on 20 August 2021.

**********

Endnotes

Decision last updated: 16 September 2022

Most Recent Citation
Cases Citing This Decision

3

R v Danishyar (No 2) [2024] NSWSC 353
Batak v R [2024] NSWCCA 66
Danishyar v The King; R v Danishyar [2023] NSWCCA 300
Cases Cited

22

Statutory Material Cited

6

Aoun v R [2007] NSWCCA 292
R v Nathan John Blundell [2016] NSWSC 1810
Bugmy v The Queen [2013] HCA 37