R v Coskun (No 5)

[2022] NSWSC 1216

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

5 September 2022

Decision date:

15 September 2022

Jurisdiction:

Common Law - Criminal

Before:

R A Hulme J

Decision:

Aggregate term of imprisonment of 34 years with a non-parole period of 25 years and 6 months

Catchwords:

CRIME — Murder — Constructive murder — Attempted robbery whilst armed with a dangerous weapon — Found guilty by jury

SENTENCING — Aggravating factors — Home of victim or any other person — Two offenders in company — Three victims – Weapon a loaded pistol— Precise role of offenders in planning and premeditation unknown and found to be neither aggravating nor mitigating – Attempted robbery aggravated by gunshot wounding of victim

SENTENCING — Relevant factors on sentence — Objective seriousness — Subjective case of offender — Disadvantaged childhood and victim of sexual abuse — Impacts of COVID-19 on conditions in custody

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences — Accumulation, concurrency, and totality — Degree of concurrency and accumulation appropriate for constructive murder and robbery whilst armed with a dangerous weapon — Substantial degree of concurrency appropriate

Legislation Cited:

Crimes Act 1900 (NSW), ss 19A(1), 97(2), 98

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

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 30E(3), Pt 4 Div 1A, Table item 1A

Cases Cited:

Darcy v R [2022] NSWCCA 54

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

Smale v R [2009] NSWCCA 220

Category:

Sentence

Parties:

Rex
Cengiz Coskun

Representation:

Counsel:
Ms S Traynor (Crown)
Mr P Coady (Offender)

Solicitors:
Solicitor for Public Prosecutions
Bannisters Lawyers

File Number(s):

2019/105006

Judgment

1. HIS HONOUR: John Odisho died from a gunshot wound to the head inflicted during the course of a home invasion and attempted robbery of Sargon Odisho at the apartment they shared at Five Dock on 2 April 2019.

2. Cengiz Coskun is now to be sentenced after having been found guilty by a jury on 24 March 2022 of murder and attempted robbery whilst armed with a dangerous weapon.

3. The maximum penalty for murder is imprisonment for life. There is also a standard non-parole period which, in the circumstances of this case, is 20 years. The maximum penalty for attempted robbery whilst armed with a dangerous weapon is imprisonment for 25 years and there is no standard non-parole period. ^[1] These are the statutory guideposts.

   1. Crimes Act 1900 (NSW), ss 19A(1) and 97(2); Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, Table item 1A.

4. The Crown does not contend that this is a case warranting imposition of the maximum penalty.

Facts

5. By way of overview, Mr Coskun was one of two intruders who entered the apartment at 103/50-52 East Street Five Dock at about 3.45am on 2 April 2019, intent on robbing Sargon Odisho of drugs and money. In the events that transpired, John Odisho received a fatal gunshot wound to the head and Sargon Odisho received gunshot wounds to the left arm. Mr Coskun was also shot in the left flank by Sargon Odisho before he and the other intruder fled. Mr Coskun drove himself to Auburn Hospital where he received treatment and was arrested.

6. I will now go through the details of the offending. First I will address matters that are not disputed, following which I will deal with some matters of controversy.

7. John Odisho was a 25-year-old man who was employed as an electrical field officer for a business called WINconnect. He played football for the Parramatta Eagles Football Club. At the end of January 2019, he moved out of his family home and into a two-bedroom apartment at 50-52 East Street, Five Dock. Sargon Odisho was his housemate. Despite the common surname they were not direct relatives. ^[2]

   2. Evidence of Yasmen Odisho, T116-7

8. Sargon Odisho was involved in serious drug dealing. He was selling cocaine by one-gram bags as well as in larger amounts for $7,000 per ounce. He owed a debt of at least $40,000 derived from his drug dealing and drug use, and he had been threatened he would be shot in respect of it. ^[3] He came into possession of 1kg of cocaine on 28 March 2019. ^[4] At the time of the offence in the early hours of 2 April 2019, he had in his possession more than 2kg of pure cocaine (worth about $500,000), an amount of synthetic cocaine and a significant quantity of MDMA. He was also in possession of firearms (a shotgun, a pistol, and a revolver), ammunition and a taser. ^[5] Sargon Odisho’s involvement in the drug trade does not appear to have been a well kept secret.

   3. Evidence of Sargon Odisho, T943; 952-953

   4. Exhibit 3.

   5. Exhibit S; Evidence of Sargon Odisho, T942; 1073

9. An indication that Mr Coskun was involved in nefarious or unlawful activities was his possession of a mobile phone with Ciphr applications installed. These enabled encrypted communications that were beyond detection by law enforcement authorities. ^[6] He had commenced using it in November 2018. ^[7] In the weeks leading up to 2 April 2019 he also had a another mobile phone for which he had used three SIM cards, each subscribed in a false name. ^[8] Both phones were found in the car driven by Mr Coskun to Auburn Hospital.

   6. Evidence of Daniel Ferris, T1200-1

   7. Exhibit CS

   8. Evidence of Det Sgt Phillips, T1165-7

10. In a separate trial before another jury, Cem Batak was found guilty of being an accessory before the fact to the offences committed by Mr Coskun. Confining myself (as I must) to the evidence heard in Mr Coskun’s case, the precise relationship between he and Mr Batak is unclear. A mutual acquaintance, Abdulsamed Sari, gave Mr Batak’s phone number to Mr Coskun on 16 March 2019. ^[9] Records indicated there was substantial contact between the pair thereafter until the early hours of 2 April 2019. Messages indicated they met in a park after 9pm on 20 March, and again on 21 March and 22 March. ^[10] On the night of 1 April, Mr Coskun called Mr Batak at 11.37pm, and Mr Batak called him shortly after midnight. A few minutes later, at 12.21am on 2 April, Mr Batak sent a text message to Mr Coskun telling him not to come into the driveway but to park on the street outside Mr Batak’s apartment complex in Park Road, Auburn. ^[11] At 1.19am, Mr Coskun sent three text messages to Mr Batak telling him to “bring hi viz … Work shirts … Two”. ^[12]

    9. WhatsApp message, Exhibit DJ

    10. Exhibit CO

    11. Exhibit CO

    12. Exhibit CN

11. There was evidence suggestive of surveillance having been carried out on the victims’ apartment in the lead-up to 2 April 2019, but it was not conclusive. The most that can be said is that there must have been planning and premeditation that involved selection of the home of a significant drug dealer as the target. That there was a degree of planning was also evinced by the intruders arriving in separate vehicles; parking them well away from the target premises; meeting up and approaching on foot; and then scaling the fire hydrant housing to access the balcony via which they gained entry. The precise role that each of the two intruders may have played in this planning and premeditation is unable to be determined. I cannot be satisfied beyond reasonable doubt of there being an aggravating factor in this respect, but nor am I satisfied on the balance of probabilities that there is a mitigating factor deriving from this.

12. It may be helpful at this point to say something about the layout and modest size of the apartment. The balcony was at the front of the apartment, at the eastern end of the building, overlooking East Street. Adjoining the balcony was a living room and kitchen and then a hallway. To the left (north) was another hallway leading to the front door. Continuing to the west was a bathroom and then bedroom 2 on the right and bedroom 1 straight ahead. The bedroom doors were directly adjacent to each other.

13. The hallway was just over a metre wide. The doorways to each bedroom were only about 80cm wide. The distance from the centre of the doorway of one to the centre of the doorway of the other was just under a metre. ^[13]

    13. These approximate measurements are derived from scale plans in evidence, Exhibits B and AU.

14. John Odisho and Larissa Mitchell-Wiszniewski, whom he was dating, retired to the master bedroom (bedroom 1) shortly after midnight on 2 April 2019 and locked the door. Sargon Odisho had gone to the Five Dock Hotel where he drank and played poker machines. He returned home at around 2.45am and went to his bedroom (bedroom 2).

15. At about 3.45am, Mr Coskun and the other intruder arrived in separate vehicles and parked a street away. When they arrived at 50-52 East Street, they were able to utilise the fencing for ground floor apartments and a fire hydrant shelter to climb up to the balcony of Unit 103. Entry was gained through the unlocked balcony door from where the men made their way down the hall towards the bedrooms.

16. Mr Coskun was wearing gloves and something covering the bottom half of his face, as well as a yellow high visibility short-sleeved shirt over the top of a black hoodie. The other man was described as thinner in build, and was wearing dark clothing with his nose and mouth also covered. ^[14]

    14. Combining evidence of a neighbour who saw the two men leaving the scene (T317) and evidence of items later found by police in Mr Coskun’s car.

17. Ms Mitchell-Wiszniewski said she was woken by a “ruckus” in the hallway. It sounded like multiple people stumbling around or bumping into walls, and initially she gave it an innocent interpretation, thinking perhaps it was Sargon Odisho coming home drunk and accompanied by guests. However, she then heard him say, in a reasonably loud and panicked tone, something like, "I don't have" and "I don't know". John Odisho got out of bed and went to the bedroom door. She sat up and moved toward the foot of the bed where she could get a better view of the door area. He made a hand gesture indicating for her to stay put.

18. Ms Mitchell-Wiszniewski was not sure if the door was unlocked by John Odisho or if it was broken open, but she said he was trying to keep the door closed with his body weight. It was a hollow core door and was extensively damaged. She said that as he was trying to keep the door closed, she could see there was an altercation happening outside the bedroom. She said: ^[15]

“A. … I could see a wrist, this much of a hand (indicated), hand and the wrist.

Q. So, you’re saying the wrist area upwards, yes, you could see a hand?

A. Yes, holding a gun.

Q. What colour gun?

A. It looked like it was black.

Q. And you said that you saw the wrist area of the gun. Could you say anything about the wrist area at all?

A. It looked like it was somebody wearing clothes, felt like I saw a sleeve, like maybe the end of a sleeve, but, other than that, no, it was very panicky. I thought it maybe was a joke still.”

15. T185

19. John Odisho exited bedroom 1 and one of the intruders who was wearing all black and had a bandanna covering his nose and mouth entered. He pointed a silver gun at Ms Mitchell-Wiszniewski’s head for a short time. She described it as not “like a small – a small handgun. It looked like a decent-sized handgun”. When she made a statement later that day, she was shown a detective’s gun and she said the silver gun was bigger than it. She also said, “it looked different” to the gun she had seen in the hallway. ^[16] The intruder then left the bedroom and Ms Mitchell-Wiszniewski said she immediately heard a lot of shooting.

    16. T187

20. Both parties contend (and I agree) that the intruder who entered bedroom 1 and threatened Ms Mitchell-Wiszniewski was not Mr Coskun. ^[17]

    17. Crown written submissions at [10]; Defence oral submissions at T8.12; 8.19

21. The ballistics evidence established that an intruder fired into bedroom 2, and Sargon Odisho fired from that bedroom out to the hallway. Ms Mitchell-Wiszniewski then heard Sargon Odisho saying John Odisho's name and yelling to call an ambulance before he came to the door of bedroom 1 and told her John Odisho had been shot.

22. Neighbours gave evidence of what they heard at various stages of these events. This included:

• An argument or yelling that was loud and aggressive.

• A distressed male voice pleading, saying words to the effect of “no”, “don’t”, “stop”, “please”, “help” and “fuck”. It is likely that this was either John Odisho or Sargon Odisho.

• The words “you fucking killed him bro, you fucking killed him” in a Middle Eastern accent. This was said in a loud and hurried tone, and could have been Sargon Odisho speaking to the intruders, or one intruder speaking to the other.

• A different voice to those above saying words to the effect of “hurry up, we need to go” and “run, run.” This must have been one of the intruders speaking to the other.

• A voice saying “Johnny stay with me”, “don’t go to sleep”, and repeating the name “Johnny.” This must have been Sargon Odisho speaking to John Odisho.

23. Mr Coskun and the unknown man left the apartment via the balcony and ran down East Street. Mr Coskun returned to his car and made a phone call to Abdulsamed Sari, telling him that he had been badly hurt. They agreed that he would drive himself to Auburn Hospital, where Mr Sari would come to meet him.

24. Mr Coskun parked a short distance from the hospital. He removed most of his clothing and left it in the car. He also left the car key on top of the rear passenger-side tyre. He entered the hospital to seek treatment for a gunshot wound to his lower left flank where he had been struck by shotshell discharged from Sargon Odisho’s .38 calibre Smith & Wesson. He declined to identify himself or tell medical staff how he incurred the injury. It may be inferred that he intended that Mr Sari would drive the car, and the incriminating evidence within it, away from the hospital, and thereby avoid detection by police. Whether Mr Sari would have obliged is unknown as the opportunity never arose; he was prevented by police from speaking with Mr Coskun.

25. Emergency services were quickly on the scene at Five Dock. Frantic attempts were made to keep John Odisho alive, and he was taken to hospital. It was determined that his injuries were not survivable and he died later the same day. The cause of his death was a single gunshot wound caused by a .40 calibre bullet to the upper left side of the head.

26. Sargon Odisho received treatment at hospital for two .40 calibre bullet wounds to the left arm.

27. An extensive crime scene examination was carried out. It was determined that 10 rounds had been fired from a .40 calibre handgun, probably of a Glock-type having regard to the rectangular firing pin impression on the fired cartridge casings recovered from the scene.

28. The 10 rounds were fired from the hallway in the vicinity of the doorway of bedroom 2 (Sargon Odisho’s bedroom) into that room. Two bullets entered the wall adjacent to the door. Other rounds were fired towards the door when it must have been in a partially open position while the rest were fired straight into the room.

29. Sargon Odisho discharged his .38 Smith & Wesson six times from inside the bedroom towards the hallway. Two shots penetrated the wall adjacent to the door in the vicinity of where the two .40 calibre bullets had entered the wall. Three shots went into the hallway unimpeded and struck the opposite wall. Another shot was the one that struck Mr Coskun in the left flank.

30. The ballistics expert was not able to say anything about the order in which either gun was fired. ^[18] In closing address, the Crown contended that the .40 calibre gun was fired first whilst the defence argued the contrary. They agree (and I think it is plausible), however, that the shots fired from each gun into the wall were fired while the door was closed, and the balance were fired after the door opened.

    18. Evidence of Christopher Preece, T569.35

Controversial matters of fact

31. There was controversy about whether one or both of the intruders were armed, and about whether it was Mr Coskun who fired the .40 calibre rounds including the fatal shot. The defence case was that the unknown intruder possessed and fired the .40 calibre handgun while Mr Coskun was unarmed.

32. I am satisfied beyond reasonable doubt that both intruders were armed with a handgun, even though only one was discharged. I am also satisfied beyond reasonable doubt that it was Mr Coskun who discharged the 10 rounds from the .40 calibre gun. There are three circumstances that compel this conclusion.

33. First, Ms Mitchell-Wiszniewski impressed as an intelligent and thoughtful witness who was doing her best to give accurate and reliable evidence. She appeared to think carefully about questions and tried to confine her answers to only that about which she was confident of her memory. I accept her evidence of having seen two guns; one being the silver gun that was pointed at her by the intruder, who the parties accept was not Mr Coskun, and the other being a black gun that must have been in the possession of Mr Coskun. She saw a wrist and hand holding the black gun outside the door to John Odisho’s bedroom while he was within the bedroom attempting to keep the door closed. ^[19] The black gun could not have been held by John Odisho because he was still within the bedroom at this time, and he was wearing only boxer shorts, with no clothing to account for her seeing a sleeve. It also could not have been held by Sargon Odisho because he had a silver .38 revolver.

    19. T185

34. Sargon Odisho’s credibility was highly questionable because he blatantly lied to police so as to avoid revealing his possession of drugs and firearms and his discharge of the .38 revolver. Caution is thereby necessary in regarding his version to police of seeing one intruder with a black gun and the other with a silver gun as supporting Ms Mitchell-Wiszniewski’s account. He described the silver gun as a “revolver”, but this may have been in order to deflect police in respect of his own gun. ^[20] Mr Odisho’s evidence should be put completely aside.

    20. Police interview of Sargon Odisho on 2 April 2019 at 12.45pm; Exhibits CC/CD, Q100-101

35. Second, there is merit in the Crown’s argument that it is inherently unlikely that the only intruder who was armed would concern himself with entering bedroom 1 to threaten Ms Mitchell-Wiszniewski, and leave his unarmed companion in the hallway, outnumbered by Sargon Odisho and John Odisho.

36. Third, an important issue concerning whether Mr Coskun was firing the .40 calibre gun is the location of the shotshell wound he received from a round fired by Sargon Odisho. It was to his lower left flank and there was unchallenged evidence to the effect that the muzzle must have been within a range of 40 to 60 centimetres of Mr Coskun at the time of discharge. ^[21] The ballistics expert’s evidence of trajectories of rounds fired by each gun do not purport to precisely pinpoint the location of the shooter. However, they are consistent with Sargon Odisho in bedroom 2 being near to but at an acute angle away from the doorway while the shooter of the .40 calibre rounds, after the door had opened, must have been in or very close to the doorway while firing into bedroom 2. I am satisfied beyond reasonable doubt that it is highly unlikely the unknown intruder could have been in that position while still allowing for a round fired by Sargon Odisho to strike Mr Coskun.

    21. Evidence of Christopher Preece, T583

37. I am satisfied beyond reasonable doubt that the combined effect of these three circumstances is that Mr Coskun must have been the shooter.

38. Another disputed fact at trial, and remaining so on sentence, was whether the intruder with the .40 calibre gun, or Sargon Odisho, fired first. I very much doubt that Sargon Odisho fired first. He must have known that he only had six rounds to fire. The defence contention would entail him having fired blindly twice through the wall from within bedroom 2, not knowing where the intruders were (and not knowing where Ms Mitchell-Wiszniewski was). On the other hand, the intruders knew that Sargon Odisho and John Odisho were corralled within the confined space of bedroom 2. Once shots started being fired from the hallway into the bedroom, Sargon Odisho would then have been able to identify a direction in which to fire his weapon.

31. In relation to these disputed issues, there were further arguments presented by Mr Coady to the jury and again on sentence which I have considered but rejected. I will mention my reasons for rejecting those arguments briefly.

1. There was no opportunity for John Odisho to take up Sargon Odisho’s unloaded Hammerli .22 calibre pistol. This appears to have been conceded at the sentence hearing. ^[22]

2. The fact the unknown intruder did not fire his gun does not necessarily mean he did not have one.

3. The fact that Ms Mitchell-Wiszniewski heard gunfire “immediately” when the unknown intruder departed bedroom 1 does not mean that he was the shooter. Mr Coskun was likely in the vicinity of the doorway to bedroom 2, and whether “immediately” should be taken literally to mean that, or to mean within a few seconds, was not explored.

4. A contention that Mr Coskun was down the hallway at the time of the shooting is contradicted by the unchallenged evidence as to the range of fire of the round of shotshell which struck him.

5. Nothing turns on the blood deposited on the damage to the door jamb of bedroom 2 that was caused by shotshell from the .38 revolver. In any event, it is unlikely it was deposited by way of “projected” blood as contended for, rather than as “cast-off” blood, as it appears consistent with the nearby blood staining on the door. The inability of the ballistics expert to opine about the order of firing from each gun renders the issue of no assistance in any event. It is not capable of establishing that Sargon Odisho fired first. Nor is it capable of excluding Mr Coskun as firing the fatal shot because of the absence of projected blood of the deceased on Mr Coskun’s clothing or shoes. There could be a number of explanations for that.

   22. T12.40

Objective seriousness of the offences

40. I am satisfied that Mr Coskun and the unknown intruder carried out a home invasion, intent on robbing the occupant(s) of something illegal and of significant value, being drugs, proceeds of drug sales (money), or both. The defence concedes that the object of the robbery was, at least, “some type of financial gain, being access to cash or drugs”. ^[23]

    23. Defence written submissions [11](d)

41. They each came armed because it was obvious the drugs/money would not be surrendered willingly, and it was likely that the criminal in possession of them would be armed.

42. I have indicated my finding that Mr Coskun discharged the 10 rounds, including the shots that struck Sargon Odisho and the fatal shot that struck John Odisho.

43. It was also mildly suggested that the jury could find that self-defence was in play because it was possible that Sargon Odisho fired his weapon at the intruders first. Even if, contrary to view I have formed, Sargon Odisho had fired first after being confronted by two armed intruders, the proposition that the intruders felt the need to act in self-defence could be comfortably dismissed by the jury, informed both by the evidence and their common sense. It does not lessen the objective gravity of the offending if Sargon Odisho fired first; if anyone fired a gun in self-defence, it was him.

44. An attempted armed robbery carried out by the invasion of a home at night when the occupants are asleep is a very serious example of such a crime. As the intruders were armed with at least one handgun (and I have found it to be two handguns), the maximum penalty for the attempted robbery offence is elevated to that prescribed under s 97(2) of the Crimes Act. (It is not a further aggravating factor.)

45. It is an aggravating factor that the attempted robbery was committed by two offenders in company. Both intruders being armed, and the fact there were three victims who were confronted, are also aggravating factors. By “confronted”, I mean Ms Mitchell-Wiszniewski had a gun pointed at her head as she was almost naked in bed. Sargon Odisho and John Odisho were physically confronted and then shot at.

46. It is conceded that the effect upon Ms Mitchell-Wiszniewski “must have been serious”. ^[24] There is no direct evidence about this, but I have had the benefit of seeing her give evidence. Her outward stoicism appeared a cover for her bravery. I have no doubt the terrible and traumatic events she experienced will be in her memory for a very long time. It can only be hoped that she recovers as much as that may be possible.

    24. Defence written submissions [30](g)

47. There was some degree of forethought and planning on the part of Mr Coskun. Preparing himself by being armed, and clothed and gloved to conceal his appearance, did not occur spontaneously. The evidence is suggestive of involvement in surveillance and collaboration, but as I have previously indicated, the evidence is too imprecise to make findings beyond reasonable doubt about the extent of it. Counsel for Mr Coskun accepted that the target premises were not picked at random, ^[25] and the method of entry must have been determined somehow in advance. It can at least be said that while Mr Coskun is not proven to have been responsible for all the planning, he was certainly a willing beneficiary of it.

    25. Defence written submissions [17]

48. There was controversy about whether the aggravating factor in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act of the offences being committed in the home of the victim should be taken into account. I am already having regard to the fact that the offences constituted a violent invasion by armed offenders into the home of three people at 3.45 in the morning.

49. I am also having regard to the fact that this was an attempted robbery of money and/or drugs of significant value. There is no additional aggravation in the offence being committed for profit or financial gain (s 21A(2)(o)). There is no need to dwell further on these issues that the Crown has raised.

50. Submissions were made to the effect that Mr Coskun was the subordinate of the two offenders. I reject that. At the very least, their roles were similar and greater culpability must be attributed to Mr Coskun as the actual shooter, particularly given the number of rounds fired and their tragic effect.

51. I am satisfied beyond reasonable doubt that at the time of firing his gun, Mr Coskun at least intended to cause really serious bodily harm. There must also have been a high degree of recklessness as to the possibility of death being caused. Whilst these states of mind probably crystallised spontaneously, they were the obvious concomitants of firing the .40 calibre pistol towards two people. It must also have been a contingency of the attempted robbery that Mr Coskun contemplated that gunfire might occur. Why else take such a lethal weapon? This is a significant aggravating factor as it is not an inherent element of constructive murder.

52. The attempted robbery offence is similarly aggravated by the fact that in pursuit of the robbery Mr Coskun twice wounded Sargon Odisho with gunfire. I accept the Crown’s submission that taking this into account involves no breach of principle given the offences in s 97(2) and s 98 of the Crimes Act involve the same maximum penalty.

53. The Crown contended at trial that the charge of murder was viable on three bases: constructive murder, joint criminal enterprise murder and extended joint criminal enterprise murder. The choice of pursuing the case in this way brought about undue complexity, ran the risk of confusing the jury, and increased the possibility of some legal mishap occurring. This was a relatively straightforward case of constructive murder. Indeed, a shooting death occurring during such an armed home invasion is the quintessential justification for the concept of constructive murder. Counsel for Mr Coskun contended that sentencing should proceed upon that being the basis of liability. ^[26] I accept that.

    26. Defence written submissions [14]-[16]

54. Guns were taken in anticipation of violent resistance to the attempted robbery. When that highly probable scenario eventuated, it was met with gunfire. Regardless of intention, conviction for constructive murder ensues when the risk of causing the loss of a life by participating in a robbery with a lethal weapon materialises. It is not a matter of mitigation that there was no intention to kill or inflict really serious harm. Having said that, I am satisfied of the intention and the recklessness indicated above.

55. Constructive murder is not to be regarded necessarily as less serious than other forms of murder. The following from the Crown’s written submissions, which is uncontroversial (see defence submissions at [7]) is worth noting:

4. The Courts have expressed that constructive murder is not to be regarded as less serious than other forms of murder and will depend on the facts in the case and the acts of the offender. In R v Jacobs and Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462 Wood CJ at CL said at [332]:

Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills NSWCCA 3 April 1995. Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender’s conduct and the part which he or she played in the events giving rise to death: R v JB [1999] NSWCCA 93 [at [33]].

5. In R v Mills (unrep, 3/4/95, NSWCCA), Gleeson CJ (as he then was) said:

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.

56. Both offences are above the mid-range of objective seriousness for offences of their type.

Mr Coskun’s background and personal circumstances

57. Evidence of Mr Coskun’s background and personal circumstances comprised the tender of a number of documents, including a report by Dr Kala Ram, a clinical psychologist who had an audio-visual consultation with him on 2 May 2022. There were also letters from solicitors acting for him in civil proceedings and from his sister, as well as documents attesting to his attendance at custodial courses and programs. In a supplementary bundle there was a letter from Mr Coskun, reports about him prepared in 2014 and printouts from the Bar Book Project.

58. The Crown tendered Mr Coskun’s criminal history and custodial record.

59. Mr Coskun was aged 28 at the time of the offences. He was born in Turkey in 1990 and came to Australia with his family soon after. His upbringing was significantly marred by domestic violence, his father being emotionally abusive and physically violent towards his mother and physically abusive towards him. His parents separated when he was aged nine but continued to live in the same house. His father was an alcoholic but was increasingly violent regardless of whether he was drinking.

60. Mr Coskun’s formative years were further marred by sexual abuse by his two adult stepbrothers when he was aged 8 to 14.

61. Schooling presented difficulties for Mr Coskun in that he struggled academically and experienced bullying for being “poor”. He was diagnosed with attention deficit hyperactivity disorder when in high school and was prescribed medication. He was often suspended for being disruptive in the classroom and for truancy. He was expelled in Year 11, but he could not recall the reason.

62. In light of these various matters, it is unsurprising that drugs and alcohol have played a role in Mr Coskun’s life from an early age. He commenced drinking alcohol at the age of 11-12, using cannabis from age 13, and methylamphetamine (ice), cocaine and heroin when aged 15-18. Ice and cannabis use persisted until he was arrested for the present matter on 2 April 2019. He claims to have been abstinent since, although there is a disciplinary infraction of “refuse fail drug sample” on his custodial record dated 6 January 2021.

63. A certificate and two letters attest to his attendance at “Remand Addictions” sessions in 2020 and in 2021, as well as a program concerned with “managing stress & understanding emotions and living in a balanced way”.

64. In addition to the sexual abuse by his stepbrothers, Mr Coskun was also sexually abused and digitally raped on multiple occasions by a male officer at Cobham Juvenile Justice Centre at age 17. He also reported sexual abuse by a chaplain at that centre. A letter from a firm of solicitors in Queensland confirms they have instructions to investigate bringing a claim for compensation.

65. His mother left his father when Mr Coskun was aged 17 and took him and his two younger siblings away to various rented accommodation. By this stage he had left school and was employed in various labouring jobs. He reported feeling under significant pressure to provide for his family.

66. In 2016 Mr Coskun’s mother passed away after being diagnosed with ovarian cancer several years before. He was in custody at the time and Corrective Services NSW refused him leave to see his mother to say goodbye or to attend her funeral.

67. Mr Coskun’s criminal record commenced in the Children’s Court when he was aged 17. In 2007 and 2008 he committed offences that included break, enter and steal, take and drive conveyance without the owner’s consent, escape police custody, and intimidate, resist, and assault police officers.

68. Exposure to the therapeutic regime of the Drug Court in 2009-10 was seemingly of no benefit as his offending continued. A suspended sentence of imprisonment imposed in 2013 for a serious assault offence, and community service orders imposed in 2012 and 2014 for weapon possession and disqualified driving, were to no avail.

69. Mr Coskun was sentenced at the end of 2014 to 5 years’ imprisonment with a non-parole period of 3 years in respect of six robberies of Subway stores in 2013 while armed with a knife. He stole money ranging from to $350 to $1125. It is notable that on three of the occasions he was wearing a high-visibility shirt over a long-sleeved hooded jumper, just as he did in committing the present offences. He completed the parole period in early January 2019 but was back in gaol following his arrest for the present matters only three months later.

70. Counsel for Mr Coskun accepts that this criminal history disentitles his client to leniency. ^[27]

    27. Defence written submissions [31]

71. The custodial history document indicates that Mr Coskun can lay no claim to ever having been a model prisoner as there are quite a few internal disciplinary infractions, including both violent and drug-related breaches, for which he has received punishments in the various periods in which he has been incarcerated.

72. Dr Ram spoke with both of Mr Coskun’s siblings. They confirmed significant aspects of the details he provided of the circumstances of his upbringing and adult life.

73. Dr Ram administered a number of tests, the results of which confirmed reports of Mr Coskun experiencing anxiety and depressive symptoms throughout his life. He was significantly above the cut-off score for PTSD which was consistent with reports of him suffering childhood sexual abuse. He was found to be within the medium risk classification for re-offending. (In 2014 he was assessed by Community Corrections officer as having a “medium to high risk of re-offending”.)

74. Dr Ram summarised key features of Mr Coskun’s life as follows:

“Psychological assessment of Mr Coskun reveals an emotionally and socially deprived and very traumatic childhood characterised by low socio-economic status; father’s alcohol misuse; parental neglect; lack of emotional supports; physical and emotional abuse by his father as well as ongoing exposure to significant domestic violence in his parents’ relationship for which he never recalled his father being accountable for … These early childhood experiences appear to have been compounded by a) limited opportunities to get out of the poverty and abuse cycles due to his mother’s immigration to Australia and therefore limited English proficiency; b) Mr Coskun being the eldest of three (3) children with a nine (9) year age gap between himself and the middle child, thereby increasing his responsibility and pressure Mr Coskun felt on protecting his mother and siblings; as well as c) his experience of bullying across the various schools he attended, thereby having had no place of respite available to him during his childhood.

Additionally, this assessment has revealed significant and protracted suffering related to ongoing sexual abuse from ages 8-14 which was (initially) perpetrated by his two stepbrothers in addition to enduring sexual abuse by a guard and chaplain on multiple occasions whilst in a juvenile justice centre at age 17 years. These adverse childhood experiences undeniably predisposed Mr Coskun to childhood schemas associated with mistrust of authoritative figures as well as a pervasive lack of safety, thereby resulting in symptoms consistent with depression, anxiety and ADHD.”

75. It was Dr Ram’s opinion that Mr Coskun met the diagnostic criteria currently, and at the time of the offending, for:

Posttraumatic Stress Disorder both in childhood and currently.

Major Depressive Disorder with Anxious Distress.

Substance Use Disorder, namely cannabis and methylamphetamines (currently in sustained remission). This was thought to be precipitated and perpetuated by the above two disorders.

76. Protective factors for Mr Coskun, according to Dr Ram, included his strong support from his siblings; positive attitude towards help-seeking behaviour to address his underlying symptomatology; the sustained absence of any current drug or alcohol problems; further demonstrated commitment to change as supported by the completion of courses and long-term employment whilst in custody; stable accommodation available to him upon his release; and plans to secure meaningful employment upon his release. It was noted, however, that regular consultations with a psychiatrist would further mitigate the risk of relapse and recidivism.

77. Mr Coskun’s sister provided a letter which supports the history contained in Dr Ram’s report. She also includes that the time her brother has been in custody have involved the added difficulties of the pandemic; namely, periods of isolation and quarantine as well as limitations on visits and contact. It is unknown when these harsher aspects of the custodial experience will come to an end. It is something that is necessarily taken into account as a mitigating factor.

78. Ms Coskun includes that her brother has expressed sincere remorse and regret for his involvement in the tragic events of 2 April 2019. He appears to acknowledge that if he had not entered the victim’s unit, the deceased would not have lost his life. He claims not to have been responsible for discharging the firearm. (I have indicated earlier that I am satisfied beyond reasonable doubt that Mr Coskun did in fact fire the fatal shot.)

79. These are claims similar to those which he wrote himself in a letter which is before me. The Crown objected to the letter, but I do not consider it necessary to deal with that. Mr Coskun included in the letter that he “never took a weapon anywhere”, but I have earlier indicated I am satisfied he did. Generally, it appears he has little or no insight into either his legal or moral culpability for the death of the deceased. Most of the letter involves a recounting of his pity for himself and his family.

76. I accept that a significant element of Mr Coskun’s subjective case is his experience of early life disadvantage as well as physical and sexual abuse. I have no doubt that this has adversely affected his growth, development, maturity and outlook in large measure, and explains his resort at an early age to substance abuse. Against this background it is hardly surprising to see that there are symptoms of anxiety and depression, a lack of respect for authority figures and the law, and a significant engagement with the criminal justice system.

77. Mr Coady declined to pursue a submission that Mr Coskun’s mental condition was causative of the offending and thereby reduced his moral culpability. Rather, he submitted that the adverse consequences of the various matters in Mr Coskun’s background were more broadly relevant and play a part in explaining what led him to the situation he now finds himself in. I accept that submission.

78. I am not satisfied to the required standard that Mr Coskun is remorseful. The only evidence potentially available on the subject is his letter and the letter of his sister. I am not persuaded that he has accepted responsibility for the death of John Odisho. It is unsurprising that no submission was made on the subject.

79. If Mr Coskun truly is committed to abstaining from substance abuse in the future that will go a long way towards enhancing his prospects of rehabilitation and avoidance of reoffending. It may also be the case that disclosure and dealing with past sexual abuse and engagement in psychological and psychiatric counselling will help foster a more positive and prosocial mental outlook and approach to life. The support of his siblings is a further protective factor. The most that can be said at this point is that there is some hope.

80. The past two and a half years in custody have been attended by the isolation and deprivations consequent upon the COVID-19 pandemic. This has rendered the custodial experience for all inmates, including Mr Coskun, more onerous and it is presently unclear when there might be a complete return to normal. I have factored this into the assessment of sentence.

81. A submission was made that there should be a longer parole period and consequently shorter non-parole period because there are special circumstances in this case. In this regard, attention was invited to the additional hardship of custody during the COVID-19 period and the need for an extended period of support in relation to Mr Coskun’s drug addiction. I have taken all matters in Mr Coskun’s subjective case into account in the assessment of the overall sentence, and these matters do not have sufficient further significance as special circumstances. In any event, the parole period that I propose will be ample to assist his reintegration into the community and provide him with support if there remains any issue in relation to drug use at that time.

Outstanding sentence proceedings in the District Court

86. At the sentence hearing on 5 September 2022 the Crown advised that Mr Coskun was to appear for sentence in the District Court on 8 September 2022 for an offence of reckless wounding committed on 30 June 2019 at Long Bay Correctional Complex where he was being held on remand in respect of the index offences. ^[28]

    28. 5.9.22, T1.40

87. As it turned out, the sentencing was not finalised but was stood over to … October 2022, part-heard before his Honour Judge Pickering SC. Upon being advised of this my associate communicated with the parties to invite any submissions they sought to make in the light of this development.

88. The Crown advised that after the hearing before me on 5 September 2022, the defence had served a supplementary psychological report which raised matters that were not in the material that was before me. The Crown wanted the author of the report to attend for cross-examination. This could not be accommodated and so the defence sought and obtained an adjournment.

89. The Crown’s position is that I should proceed to sentence today as scheduled. That is practical, given my impending retirement tomorrow. The Crown advised there had been a number of previous defence applications to vacate sentence dates. It was content with the question of how to apply the principle of totality being left to the discretion of the District Court.

90. The representatives of Mr Coskun declined to make any submission.

91. It is desirable that less serious matters are finalised by way of sentencing before more serious matters. In the latter there is usually more scope to apply the totality principle in a way that best allows for an appropriate parole period within the overall effective sentence: see Smale v R [2009] NSWCCA 220 at [31].

92. As undesirable as it is, there is no alternative in the circumstances than to proceed to sentence in this Court today and to leave the matter to be resolved as best it can be to his Honour Judge Pickering SC.

Other matters bearing upon the assessment of sentence

93. I have had regard to the various purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act. They include general deterrence, the need to provide adequate punishment, denunciation of the offending conduct, and making Mr Coskun accountable for his actions.

94. It is also necessary to recognise the harm done. I have earlier mentioned the traumatic experience of Ms Mitchell-Wiszniewski and the wounding of Sargon Odisho. In relation to the death of John Odisho, a statement by his father was provided in which he explains in eloquent detail the sadness and grief he and the family have suffered and will continue to suffer following the tragic death of their loved one. There are no words capable of describing the depth of their despair. I extend to all who loved and grieve for John Odisho the sincere condolences of myself, and the Court.

95. No application was made by the Crown pursuant to s 30E(3)(a) of the Crimes (Sentencing Procedure) Act.

96. Mr Coskun has been in custody since his arrest on 2 April 2019 and so the sentence will be backdated to that date.

97. There is additional criminality in the attempted robbery offence, primarily by virtue of it including that Sargon Odisho was shot twice in the arm. I accept, however, the concession of the Crown that there should be a “high degree of concurrency” in the sentences for the two offences. ^[29] It is also necessary, however, to comply with the principle explained in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [49] (recently reviewed by Beech-Jones CJ at CL in Darcy v R [2022] NSWCCA 54 at [9]) and avoid double punishment for the foundational offence of the constructive murder. I intend to comply with this requirement by assessing a sentence which should be regarded as nowhere near what would have been appropriate had the offence been one for which a standalone sentence should be imposed.

    29. Crown written submissions at [43]

98. Finally, in compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I note that the provisions of that Act have potential application to Mr Coskun. His solicitor may be expected to provide him with further information about that.

Sentence

99. Convicted.

100. Sentenced to an aggregate term of imprisonment of 34 years with a non-parole period of 25 years and 6 months. The sentence is to date from 2 April 2019 and expire on 1 expire on 1 April 2053. The non-parole period will expire on 1 October 2044 whereupon the offender will become eligible for release on parole.

101. If an aggregate sentence had not been imposed, the sentence for the murder would have been 32 years with a non-parole period of 24 years and the sentence for the attempted robbery whilst armed with a dangerous weapon would have been one of 5 years.

**********

Endnotes

Amendments

15 September 2022 - [21] typographical error

Decision last updated: 15 September 2022