R v Dehaybi; R v JD

[2005] NSWSC 128

CITATION:	R v DEHAYBI; R v JD [2005] NSWSC 128
HEARING DATE(S):	22 - 26, 29, 30 November 2004; 1 - 3, 6, 7, 9, 10 December 2004; 7, 9, 11 February 2005
JUDGMENT DATE :	25 February 2005
JUDGMENT OF:	Levine J
DECISION:	For orders see paragraphs 84 - 93

CATCHWORDS:

D1: murder - malicious wounding with intent - armed robbery - D2: manslaughter - armed robbery

LEGISLATION CITED:

Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:

R v Berg [2004] NSWCCA 300
R v Cakovski [2002] NSWSC 1252
R v Cardoso [2003] NSWCCA 15
R v Dang [2001] NSWCCA 321
R v Dickinson [2004] NSWCCA 457
R v Henry & Ors (1999) 46 NSWLR 346
R v King [2004] NSWCCA 444
R v Lew, Ng [2003] NSWSC 781
R v Lo [2003] NSWSC 582
R v Previtera (1997) 94 A Crim R 76
R v Privett & Anor [1999] NSWSC 1076
R v Robinson [2001] NSWCCA 180
R v Masson, Symss [2001] NSWSC 1037
R v Oinonen [1999] NSWCA 310
R v Ton [2000] NSWSC 1023
R v VDN [2004] NSWSC 426
R v Way (2004) 60 NSWLR 168

PARTIES:

REGINA v FERAS DEHAYBI

REGINA v JD

FILE NUMBER(S):

SC 2004/45; 2004/11

COUNSEL:

M Tedeschi QC
(Crown)

J Spencer
(Counsel for Feras Dehaybi)

P Boulten SC
(Counsel for JD)

SOLICITORS:

Solicitor for
Public Prosecutions

Grahame W Howe & Co
(Solicitors for Feras Dehaybi)

Murphy's Lawyers Inc
(Solicitors for JD)

LOWER COURT JURISDICTION:

Revised [2005] NSWSC 128

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

FRIDAY 25 FEBRUARY 2005

2004/45

2004/11


REGINA v FERAS DEHAYBI

REGINA v JD


(NON-PUBLICATION ORDER IN RELATION TO
OFFENDER JD)

SENTENCE (Murder – malicious wounding with intent – manslaughter – armed robbery)

1 On 22 November 2004 Feras Dehaybi was indicted on three counts:

1. that on 21 March 2003, at Glebe in the State of New South Wales, being armed with an offensive weapon, namely a knife, he robbed Rosalie Taylor of a handbag, the property of Rosalie Taylor, and a diamond ring, the property of Simon Taylor;

2. that on 21 March 2003, at Glebe in the State of New South Wales, he maliciously wounded Robert Taylor with intent to do grievous bodily harm; and

3. that on 21 March 2003, at Glebe in the State of New South Wales, he did murder Simon Taylor.

2 To each of these charges the offender Feras Dehaybi pleaded not guilty. He accordingly stood his trial before a jury and on 10 December 2004 was found guilty of each of those charges.

3 The accused Feras was arrested on 23 March 2003. His date of birth is 3 December 1982. Thus, at the time of committing the offences he was twenty, and at the time of the sentences is twenty-two.

4 The maximum penalty in respect of the first count in the indictment, the robbery count, laid under s 97(1) of the Crimes Act, is twenty years. The second count in the indictment, malicious wounding laid under s 33 of the Crimes Act, carries a maximum penalty of twenty-five years. A standard non-parole period is provided in accordance with Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act for an offence under s 33 and that standard non-parole period is seven years. The maximum penalty for the offence of murder is life, though in respect of specified sentences, a standard non-parole period has been set at twenty years.

5 JD was indicted on two counts:

1. that on 21 March 2003, at Glebe in the State of New South Wales, being armed with a dangerous weapon, namely a replica pistol, robbed Rosalie Taylor of a handbag, the property of Rosalie Taylor, and a diamond ring, the property of Simon Taylor; and

2. that on 21 March 2003, at Glebe in the State of New South Wales, he did murder Simon Taylor.

6 The jury returned a verdict of guilty of an alternative charge, namely being armed with an offensive weapon, as opposed to a dangerous weapon, in respect of the armed robbery count. The jury found JD not guilty of murder, but guilty of manslaughter.

7 The maximum penalty for the offence of being armed with an offensive weapon is, as I have said, imprisonment for twenty years. The maximum penalty for manslaughter is twenty-five years. Neither of the offences of which JD was found guilty is what is known as a "Table Offence" and no standard non-parole period is specified.

8 At the time of committing the offences, JD, born 21 May 1985, was seventeen years ten months of age, and at the time of sentence nineteen years of age. He was arrested on 25 March 2003.

9 Both offenders are to be sentenced pursuant to the regime prescribed by the Crimes (Sentencing Procedure) Act 1999. It is important to bear in mind what the Parliament of this State said as to the purposes for which a court may impose a sentence and those purposes, as outlined by the Parliament, are:

“ 3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.”

10 Further, and it was not suggested to the contrary, I am satisfied that there is no alternative in relation to the offences of which each offender was found guilty to a sentence of imprisonment. No other penalty than imprisonment would be appropriate.

11 In relation to the sentences the offences of which Feras Dehaybi has been found guilty, by reason of two of them, as I have said, being subject to the standard non parole period, s 54B(2), combined with s 45(1), precludes the ordering of fixed term sentences for what are known as "Table Offences". Thus Feras Dehaybi is confronted with a curious situation, where two of the offences must have non-parole periods and parole periods, and obviously the sentence for murder will be the longest. As I have said, none of these matters affect JD.

12 Regard must also be had to the provisions of s 21A, namely aggravating, mitigating and other factors in sentencing. Importantly, in relation to aggravation, the Court is not to have regard to any aggravating factor in sentencing if it is an element of the offence (s 21A(2)). It is also important to note that the fact of any such aggravating or mitigating factor is relevant and known to the Court does not require the Court increase or reduce the sentence for the offences (s 21A(5)). There will be matters in relation to both Feras and JD that will require attention in this context.

13 As is usual, the Crown has sought to assist me by providing me with Judicial Commission sentencing statistics in relation to each of the offences and I have had regard to them in the usual way. They are, in the end, of not much assistance, but in a fairly vague way provide some idea of ranges.

14 I was referred by the Crown to the following cases: Regina v Ton [2000] NSWSC 1023; Regina v Dang [2001] NSWCCA 321; Regina v Cakovski [2002] NSWSC 1252 (Mr Spencer asked me to give this case particular attention in relation to Feras); Regina v Robinson [2001] NSWCCA 180; Regina v Privett & Anor [1999] NSWSC 1076; Regina v Masson, Symss [2001] NSWSC 1037; Regina v Lew, Ng [2003] NSWSC 781; and Regina v Lo [2003] NSWSC 582.

15 In relation to the operation of the Crimes (Sentencing Procedure) Act, I have had regard to the statements made in Regina v Way (2004) 60 NSWLR 168, and in relation to armed robbery the statements made in the guideline judgment of Regina v Henry & Ors (1999) 46 NSWLR 346. Mr Boulten in submissions for JD referred me to Regina v VDN [2004] NSWSC 426, to which I have had regard also.

16 I have had regard to the ranges of sentences encompassed by the cases referred to by counsel, which are always of some utility. In the end, however, it is for me to sentence these offenders for their crimes.

17 With respect to the offender JD, in the light of the agreement reached between Mr Boulten and the Crown that JD had offered to plead guilty to manslaughter before the trial and during the trial, I have regard to the decisions of the Court of Criminal Appeal in Regina v Oinonen [1999] NSWCA 310 and Regina v Cardoso [2003] NSWCCA 15. And also with respect to JD, I shall have regard to s 19 of the Children (Criminal Proceedings) Act 1987.

18 In the course of the sentencing hearing, three victim impact statements were read aloud, in accordance with what I was informed to be the now common practice and one permitted by law. In relation to those victim impact statements, I have had regard to the relevant provisions of the Crimes (Sentencing Procedure) Act and the decisions of Hunt CJ at CL in Regina v Previtera (1997) 94 A Crim R 76, Regina v Berg [2004] NSWCCA 300 at 43 and Regina v King [2004] NSWCCA 444 at 171 per McColl JA.

19 Mrs Rosalie Taylor read her statement as a family victim in relation to the death of her son Simon. Mrs Jane Chapman read her statement as a family victim in relation to Simon's death as Simon's sister. Mr Robert Taylor read his statement as both a family victim in relation to the death of his son and as a primary victim in relation to the malicious wounding with intent to cause grievous bodily harm done to him by Feras. By reason of the status of victim impact statements, and in no way seeking to diminish what each of the victims have said, I think in the case of Mr Robert Taylor it is appropriate that I have regard to what he said about the physical scars from the knifing, not as a discrete matter in aggravation of the penalty under s 21A, but as a factor to be taken into account, as it always is in a case such as this, where a knife has been used to stab a victim so grievously, in weighing the elements of general deterrence and personal deterrence.

20 Otherwise, in relation to Mr and Mrs Taylor and Mrs Chapman, each has expressed intense grief for himself or herself and for the family eloquently, and it is appropriate that I should acknowledge the dreadful loss that Simon's death has caused to his family and, from what they said, to the community.

21 For myself, the process of sentencing is to be dispassionate and objective.

22 During the course of the closing address, what happened at Glebe on 21 March 2003 was aptly described as an "urban nightmare". Before coming to several factual matters that are in issue, I can outline the circumstances as follows.

23 Mrs Rosalie Taylor put an advertisement in the “Trading Post” on 11 March 2003 to sell a diamond engagement ring for $15,000. The ring had been given to her by her son, Simon Taylor, to look after upon the break-up of his engagement. At about 11 o'clock on Friday, 21 March 2003, she received a call on her mobile from a man named "John", who was Feras, who gave her his mobile phone number. Arrangements were ultimately made for her to go to Glebe between 7.30pm and 8.00pm at the address of 1D Wigram Road. The last telephone call she had with the offender Feras was whilst she, her husband and her son were driving across the Harbour Bridge at about 7.25pm. The Taylors arrived shortly thereafter at Wigram Road, Glebe. Mrs Taylor had the ring inside her bag and also available to her some documents in an envelope relating to valuation. Feras Dehaybi was standing outside 1D Wigram Road. They introduced themselves. Mrs Taylor walked back to the car and obtained the valuation papers. Outside 1D Wigram Road, Feras feigned a telephone conversation with his girlfriend and explained that her being away required them to get access to the house via the backyard. That is where Feras led the party of the three Taylors.

24 Once in the backyard, there was a very brief exchange of conversation, which I am satisfied beyond reasonable doubt did not amount to an argument and did not amount to shouting or screaming. This is important with respect to the intrusion into the events of JD. In any event, JD burst into the backyard carrying a replica pistol. Thereupon, not surprisingly, there are confused accounts.

25 After what must have been a very short time, the bag had been snatched from Mrs Taylor and there was a pursuit down the lane. JD was tackled by Simon Taylor and whilst he had JD down, Simon was stabbed four times by Feras, two of the wounds being fatal. Prior to that, Mr Robert Taylor had been stabbed in the chest. That Feras was the stabber has been established beyond reasonable doubt. After the stabbing of Simon Taylor, Feras and JD ran away. Feras put the bag under a car and threw the knife in a park where it was found by the police. The bag was also located.

26 The jury was satisfied beyond a reasonable doubt that each of the elements of each of the offences had been made out, and brought in their verdicts accordingly. The issue left to the jury in relation to Feras was self defence and defence of another and that failed.

27 I would add that during the course of the chase, Robert Taylor became weak and lent against a car and ultimately collapsed. Both Robert and Simon Taylor were taken to Royal Prince Alfred Hospital. Robert Taylor suffered a stab wound which punctured his lung. Simon Taylor suffered stab wounds to the left anterior and lateral thorax, a stab wound to his thigh and to his nose. He did not survive surgery.

28 The Crown submitted that, in accordance with the verdict of the jury, I would conclude beyond reasonable doubt that the following facts were established in the course of the trial.

29 First, that in relation to both offenders, this was a pre-planned robbery. Each of them knew before they came to the vicinity of the scene that it was going to be a robbery. This is abundantly clear from the verdicts as it was available on the evidence, and I am so satisfied.

30 The second matter is far more contentious, and this relates to Feras. The Crown asks me to reject beyond reasonable doubt Feras' assertion that he picked the knife up fortuitously in the backyard during the course of the robbery – in other words, that I should find beyond reasonable doubt that he had the knife on his person before entering the backyard with the Taylors.

31 Had Mr Spencer made to me the submission he had made to the jury on the subject, namely that if one was going to bring a knife, one would not bring something as small as a steak knife but rather something like a ‘Crocodile Dundee’ knife, I would have rejected it. The steak knife is the very kind of knife one would bring because it is easily concealed.

32 The difficulty in relation to this aspect is the evidence of Mr Faraj and his wife Carol Kfoury. Mr Faraj and his wife owned the premises at 1D Wigram Road and lived there. Mr Faraj knew the two offenders by reason of family acquaintance. When shown the photographs of the knife he was asked "Is that knife yours?" and he answered "No". When presented with exhibit N, the knife itself, he was asked the question "Is the knife yours?" He answered "Possibly. We have a lot of knives in the house". Later on he was asked "Do you recognise the knife, exhibit N?" and he answered "No". He was asked to compare exhibit N to a photograph of knives taken in the drawer of his home and agreed that there were distinguishing features in terms of colour and origin – “Taiwan” as opposed to “Stainless Steel Japan" which is on exhibit N. In cross-examination, the witness conceded that although he didn't positively identify the knife, it was put to him that he could not say "for sure" if that was his knife or not, to which proposition he agreed. In re-examination, he said that had he had seen a knife on the previous Monday when taking the garbage out, on the back step, he would have picked it up and taken it inside. He could not recall ever in the month of March that year seeing a knife lying on the ground or just lying around in the backyard. A knife, however, was used in that place to cut up cardboard boxes for recycling as part of his business.

33 His wife, in her evidence-in-chief, disclosed that it was only on 25 November 2004, as I understand it, that the police came to the Faraj residence with photographs of the knife. An explanation for the police attending on 25 November 2004 and the Farajs giving their evidence on 29 November last year is that both events occurred after the opening by Mr Spencer, in which the issue was in fact clearly and openly raised that JD had found the knife in the backyard. Mrs Kfoury was even more unhelpful to the Crown by saying that it may have been one of her knives when asked whether she recognised it and answered "I don't know". When asked directly whether it was her knife she admitted she told the police officer that she did not recognise the knife he showed her and at one point in her evidence she said that it was still her position. The uncertainty continued throughout her cross-examination.

34 It would be open to me to reject the evidence of the Faraj couple as unreliable by reason of the inconsistencies in evidence-in-chief, cross-examination and re-examination. That would leave the evidence of Feras, which the Crown would logically then invite me to reject. I have given this aspect of the case a lot of consideration. I am not prepared to reject the evidence or draw any inferences and cannot find beyond reasonable doubt that he did bring the knife. The evidence before me does not admit of a finding to that degree of proof.

35 I am satisfied beyond reasonable doubt, however, that Feras presented the knife to Mr Taylor in the backyard, as Mr Taylor gave evidence of it, whereupon it was open to the jury JD then knew of it – and the jury did.

36 I add this: were I satisfied beyond reasonable doubt that Feras arrived armed with a knife, such a finding would not go to the issue of premeditation in relation to the wounding or the homicide. More probably than not, I do find both offenders did not intend that harm would befall anyone. That finding is made as at the point of time just before the presentation of the knife in the backyard. After its presentation, I am satisfied beyond reasonable doubt that the verdict of the jury necessarily connotes, in terms of the finding of manslaughter, that JD contemplated the possibility of an unlawful and dangerous act, the latter word being one which carries the meaning "an appreciable risk of serious injury".

37 To return to the knife being in Feras' possession before the Taylors arrived, if that finding could be made beyond reasonable doubt, as I have said, it would not go to premeditation in relation to the two major offences, nor would it, in the end, add very much to the armed robbery offence in terms of planning or premeditation.

38 The finding of the jury necessarily implies in relation to Feras that he was the stabber. There can be no question of that in relation to the s 33 count, the malicious wounding. I am satisfied beyond reasonable doubt that at all times the knife was in Feras' hand. I reject that component that his position in this trial that after he was "tackled" by Simon, he dropped the knife and the knife was picked up by Simon who was still in the position of having tackled JD, and that, Feras holding the hand of Simon in which was the knife, engaged in a back and forth movement with Simon's knife-bearing hand that brought about four wounds, two of which were fatal.

39 After Simon Taylor, by this bizarre scenario, had been reduced to being unable to restrain JD, Feras surprisingly picks up the knife again, not leaving it in the hand of the person whom he asserted had it in his hand and from whom he wished to defend his brother and himself, then ran away and threw it in the park. No sense or reason underlies the scenario painted by Feras, and nothing was added to it by what purported to be an attempt to reproduce the physical movements before the jury in the course of the trial.

40 I am satisfied beyond reasonable doubt that at all times Feras had the knife and he used it to extricate his brother on the basis that he was not going to leave him in the laneway and, secondly, to prevent his brother's apprehension which would lead to his own.

41 It was argued that it was unnecessary for me to decide who it was that took the bag from Mrs Taylor. Although it is not necessary, I am satisfied beyond reasonable doubt that it was JD. This is based upon my acceptance of Mrs Taylor's evidence in this respect, and the application of commonsense to the proposition that Simon Taylor followed at least JD out of the backyard, chased and tackled him. It would be the person with the bag whom, on any reasonable basis, one could infer Simon Taylor would have been out to get. That it was Feras who ultimately planted the bag under a car is neither here nor there, given the circumstances of JD having been tackled.

42 The principal matter is each were involved in the joint criminal enterprise of the robbery. In the light of the Crown's position that it was not necessary to make the finding, although I have made it, I will not permit it to operate adversely to JD.

43 In the Crown case on sentence in relation to Feras, the Crown tendered an Antecedents Report Form (exhibit A), which discloses that on 10 April 2002 at Balmain Local Court in relation to four offences of obtaining money by deception, Feras was fined and, significantly, placed on a s 9 good behaviour bond for two years. Thus, it is that when he committed the crimes the subject of these sentencing proceedings, he was on a bond to be of good behaviour.

44 Exhibit C is a Probation and Parole Report prepared on 4 February 2005 by a Mr Peter Poole of the Silverwater Parole Unit, and to this document I will return shortly.

45 The victim impact statements, to which I have referred, became exhibit E.

46 For the Crown, it was submitted that whilst the Crown acknowledged that the murder did not fall within the most serious category of murder, equally clearly it fell within what one might describe as the more serious category. There are two reasons advanced by the Crown for placing it in what the Crown described as the more serious category.

47 The first is that it arose out of a particularly callous robbery for purely financial gain. I agree with the description of the robbery. The reference by the Crown to "financial gain" generated a process in the legal advisor's camp of Feras. But at first blush it might well generate a protest because in exhibit C, the Pre-sentence Report for Feras, the parole officer reports Feras' reason for doing the robbery.

48 Feras had been assaulted earlier in the year and had been depressed, so it was said. Over time he told the parole officer he decided "he wanted to do something" to alleviate his feeling of depression and after seeing the ring advertised for sale he decided, according to Mr Poole, he would try to steal it:

“Mr Dehaybi stated that he had no idea what he was going to do with the ring after he had stolen it, adding that he did not think that far ahead.”

49 This statement of the parole officer was false. The protest against the Crown submitting that the usual motive applied for the robbery, namely financial gain, was unfounded. The reason is easily stated. On the seventh day of the trial (30 November 2004), in the course of his evidence in chief, Feras was asked by his counsel in relation to planning to steal the ring (at TS 416-417):

“Q. Why did you want to do that?
A. Stupid idea. Just --
Q. Did you need money?
A. In a way yes, because I was – I was going to buy something."

50 The account given to Mr Poole as to the circumstances in the backyard, even after he had been convicted of the charge upon which he had been indicated, simply cannot be accepted either. I do not accept he tried to “persuade” Mrs Taylor to show him the ring in the backyard and merely planned to grab the ring and run and that merely Mrs Taylor “refused”, whereupon the co-offender JD entered the backyard with the replica pistol and Simon Taylor began to wrestle with him. He repeats the position as to Simon having the knife, which I reject.

51 The second reason why it should fall into the more serious category of murder, the Crown submitted, was although it was done in the heat of the moment to try and extricate his brother, even then one would have thought, the Crown says, that he could have down some minor wound with the knife to Simon Taylor which would have most probably successfully extricated JD, without stabbing Simon in an area which quite clearly placed him at risk of death. In the anger of the moment he stabbed Simon Taylor multiple times without the slightest concern of the possibility of death or probability of death, the Crown submits. These submissions, in the light of my finding of the relationship between Feras and the knife throughout the incident, can be accepted.

52 It must be recognised that to identify the ambit of the notion of "more serious category of murder" is extremely difficult. The standard non-parole period, as I have said, is 20 years for the crime of murder and is said to relate to a mid-range of objective seriousness. As a result of the decision in Way, that mid-range represented by that standard non-parole period is now to be taken as a guide or a benchmark. It seems to me that if there is one factor that would distinguish “more serious” from “most serious” it is whether or not the act causing death was done with an intention to kill or an intention to inflict grievous bodily harm. I am of the view that no other finding beyond reasonable doubt is open in this trial than that the act which brought about the death of Simon Taylor was done with the intention of causing grievous bodily harm. I have already indicated that I accept that neither offender anticipated at the beginning of the enterprise that anyone would be harmed, let alone killed.

53 The two characteristics to which the Crown refers would place this matter outside the middle range but still not in the most serious category. That is almost the best one can say. There is no doubt minds would differ as to the ambit of all the categories and ranges within the crime of murder, especially when the intention was not to kill but to cause grievous bodily harm.

54 The upshot of this is that I will treat the standard non-parole period as a guide and as I propose partially to cumulate the sentences in relation to those offences to attain the requisite totality, the non-parole period will in the end be less than the standard non-parole period.

55 I received no submissions from the Crown as to the seriousness of the malicious wounding offence. I regard this offence as particularly serious and above the mid-range. The explanation given by the offender Feras in evidence that he did “not have a clue” as to how Mr Taylor came to be stabbed, and his evidence to the effect that Mr Taylor in some way was outside the backyard holding the gate, or something to that effect, and that it was not until Feras managed to “push” past Mr Taylor or “push” Mr Taylor out of the way, simply beggars belief. I regard the stabbing of Mr Taylor as a deliberate, callous act. I reject the offender's explanation. The offence of malicious wounding with intent to cause grievous bodily harm was found proved by the jury.

56 It is especially important to bear in mind that Feras stands to be sentenced not merely for three gravely serious offences but for three offences involving three different victims.

57 As to the robbery the Crown did characterise it as callous. That, I have indicated, I accept. Feras was the principal planner of the joint enterprise and does not fall within the Henry's case guideline. I add that none of the cases to which I have been referred, and this is not surprising as each case is always different, resembles this nightmare, as I have described it.

58 In Feras’ case on sentence, there was tendered as Exhibit 1 a report by Anita Duffy, psychologist, dated 1 February 2005. In the history given to the psychologist the offender in effect repeats what he had said to the Probation and Parole officer as to not having thought the robbery through. This I reject. The report is of some utility in relation to matters of background, especially as to the offender's family and his strict but loving upbringing. His recounting of the events of the night is minimalist in the history as recorded by Ms Duffy and led up to a statement to the effect of his being distressed at the death of the young man and how he wished the whole thing had not happened. He was psychologically assessed in relation to intelligence and personality. In relation to the former, his score was such that, according to Ms Duffy, he might have had some difficulty in achieving the goal of undertaking the HSC but would have little problem in completing trade level study and employment. As to the latter, personality, Ms Duffy reports that the tests disclose anxiety, dysthymia and post-traumatic stress disorder.

59 To the extent that Ms Duffy purports to express an opinion in relation to describing matters of schizophrenia and “mental illness”, I reject it. No evidence was called from a psychiatrist to support any suggestion that Ms Duffy makes. I do not ignore what Ms Duffy has said. It is useful, but in the end warrants no particular weight.

60 At this point it is appropriate to turn to the question of contrition. There is no evidence of it. In exhibit W, the record of interview, as was his right, Feras declined on the advice of his solicitor, Mr Antoun, to answer questions. This cannot be held against Feras. Three times, however, during the course of the interview when the occasion permitted, Feras said how sorry he was and that he was only defending himself and "his friend", and at one instance said he was nervous. I take it that that nervousness applied to his having been in a police station. I do not accept any of these statements as genuine expression of contrition and remorse as to what he did and the three crimes he committed. Statements to the police officer and the statement to Ms Duffy amount to no more than the expression of regret at the position in which Feras found himself, being fully cognisant that a substantial gaol sentence would be imposed upon him. That is clear from Ms Duffy's report.

61 The expressions in the record of interview I reject as expressions of remorse. In my view they were the beginning of an exercise in damage control – the ultimate manifestation of which was during the trial where Feras sought to make his victims the aggressors and himself and his brother the victims. The manner in which Feras conducted his trial was a matter for him and his legal advisers. The jury found him guilty. I do not and cannot hold against Feras the manner in which he conducted the trial. That would be unfair and wrong in principle. I simply say that in the context of my rejecting such evidence as there is going to remorse and contrition.

62 Exhibit 2 on sentence was a bundle of references. To the extent that the references relate to the parents of the offenders, they are essentially irrelevant. I have no doubt, however, the parents were and are highly regarded in both Glebe and their own community, and shame and distress has been caused to them by the conduct of their sons. Five of the twelve tendered references fall into the irrelevant category. The balance speak highly of Feras (and his brother JD). The bundle of exhibits would appear to give the impression there is astonishment abroad at the conduct of Feras.

63 In view of the opinion I have formed as to the utmost gravity of each of the crimes Feras committed, I cannot permit material such as this to weigh against the imposition of a sentence which, in the end, reflects the objective gravity of those crimes. I am not prepared to allow matters under s 21A to operate in aggravation of the sentences. By reason of there being three offences committed against three different people it is extraordinarily difficult realistically in relation to each offence, or fairly on a totality basis, to decide upon any component that would represent aggravation or mitigation without running the risk of double or triple counting, or undue minimisation.

64 The following subparagraphs of the section would be relevant: (b) the actual use of violence; (c) the actual and threatened use of a weapon; (d) the use of a weapon would not be available in my view on any realistic basis in relation to the murder, although murders can be committed with bare hands. In relation to the robbery charge there can be no aggravation by reason of the use of the knife because the knife was a component of the robbery charge in relation to malicious wounding the use of a weapon could be available (see Barr J in Regina v Dickinson [2004] NSWCCA 457 at 23); (e) the offence was committed in company; (g) the injury to Mr Taylor was substantial in relation to the s 33 charge; (j) the offender was on conditional liberty; and (n) the offence was part of a planned criminal activity, namely the robbery.

65 I add that subparagraph (m), which provides that the offence involving multiple victims may be used in aggravation, has no application here. There was only one victim for each offence. I further add that I do not understand what the phrase "organised criminal activity" means in that subparagraph (m).

66 In relation to mitigation, the only two subparagraphs available in relation to Feras are: (g) the offender is unlikely to re-offend; and (h) has good prospects of rehabilitation.

67 It is appropriate in my view, by reason of the multiplicity of charges and victims, to avail myself of s 21A(5) – namely, that while there may be aggravating or mitigating factors as outlined I do not propose to increase or reduce the sentence for the offences by reason of those matters. Feras stands to be sentenced for the most series of three crimes against three victims and those sentences for those crimes must involve a substantial component for general deterrence and personal deterrence as well as the other factors referred to in s 3A of the Act, which I read out at the beginning of these remarks.

68 I am not persuaded the relative youth of Feras, or such psychological problems as the evidence discloses or, in the circumstances, the fact he surrendered himself are of such subjective weight as to interfere with the imposition of a sentence that must properly reflect the objective gravity of the crimes.

69 I propose to make the sentence for the armed robbery a fixed term to be served concurrently with the sentence for malicious wounding which, as I indicated earlier, must be a sentence made up of a non-parole period for what I will describe as a parole period. Partially concurrent to those sentences will be served the murder sentence which will be a prescribed sentence made up of a non-parole period and a parole period. In relation to the murder sentence, the parole period will bear the relative statutory proportion to the non-parole period. I see no reason to adjust the parole period for the murder sentence by reducing the non-parole period by what would be no more than about six months, to reflect a non-parole period that bears the statutory ratio to the totality of the sentences imposed for the three offences. This reduction would be tinkering and meaningless in the light of the objective gravity of the offences. I add that nothing has been placed before me that would constitute special circumstances, either by reference to relative youth, subjective considerations or the proposed partial concurrence of the sentences to be imposed.

70 I turn now to JD.

71 The first thing to be noted is that prior to trial JD pleaded guilty to manslaughter and did so again during the course of the trial. He was found guilty of manslaughter. It is agreed that whilst there was no offer to plead in relation to robbery, the parties, understandably concentrating the negotiations in relation to the serious charge of murder, in the end the greater has subsumed the lesser and it can be taken that any benefit flowing to JD following from the two offers to plead in relation to the count of murder, namely, to plead manslaughter, should also flow to the sentence for the separate offence of robbery while being armed with an offensive weapon.

72 Next, JD is a person of good character in the sense that he has no prior convictions. Further, exhibit 5 on the sentence proceedings, the bundle of references, subject to the same reservations that I applied to the bundle tendered for Feras, does go to reinforce the proposition that JD is held in high regard. That bundle, as pointed out to me by Mr Boulten, included a letter to the offender whilst at Kariong from World Vision acknowledging a donation he apparently made while in custody. Evidence was called in the course of sentencing proceedings from Gladys Akle, a resident of Annandale and author of one of the references. Her evidence was not challenged and she gave evidence generally of the family's reputation in Glebe, but more relevantly the favourable testimony she gave to JD and the work he did in the coffee shop. Also called was Derek McRae, author of a reference in Exhibit 5. He was a real estate agent and had particular acquaintance with the Dehaybi family in terms of getting their leases ready. He used to see JD after school and on weekends and saw him at work. He said he was polite and courteous and enjoyed a good reputation in the area. Mr McRae, like Ms Akle, was shocked by the offences.

73 Exhibit D on sentence is the background report from Juvenile Justice, which makes it quite clear that whilst there may have been problems in Kariong, since JD has been at Cobham his progress has been excellent. Exhibit 6 on sentence are certificates of accomplishment. Whilst at the George Anderson Walpole School he attained the award of School Certificate, which is to be commended.

74 I also have to consider exhibits 3 and 4, namely the reports of the consultant psychiatrist, Dr Olav Nielssen and the consultant forensic psychologist, Tim Watson-Munro, dated 19 November and 17 November 2004 respectively. It seems to me that the evidence of Dr Nielssen and Mr Watson-Munro describe the offender’s cognitive function in a way which, to some modest extent, diminishes his culpability. I am not prepared to say on that evidence that more probably than not JD was absolutely at the mercy of Feras in terms of JD's participation in the joint criminal enterprise of the armed robbery of Rosalie Taylor. He is younger and there is no evidence comparable of that in Feras' case as to JD being an organiser. Thus his sentence for the robbery will be reduced to one less than I propose to impose on Feras. Certainly JD's low intelligence levels cannot be overlooked and it is clear on the evidence that he is capable at practical skills but not in matters of theory. The evidence to which I have referred is with respect to the offender's psychological and psychiatric functioning: there is a diagnosis of an adjustment disorder with anxiety and depression said to be in partial remission. The particular relevance of this goes to the prospects of rehabilitation, which I find to be excellent overall in the material tendered. The offender JD has suffered extreme weight loss whilst in custody and eating problems and suffers from anxiety disorders which affect his ability to function in any new environment.

75 I am satisfied in the case of JD on all his evidence, particularly taking into account his age, that the requirements for personal deterrence are greatly reduced. There nonetheless exists the requirement of general deterrence to send a message out to the community that, whomsoever you are, you do not embark alone or with anyone else in this type of conduct. General deterrence is necessarily a vital component in the sentences to be imposed on each offender in this trial. Personal deterrence, as I have said, is less a factor in relation to JD. Nonetheless the message must be stated again and again: no one should rob; no one should commit robbery whilst armed; nor should it be done in company. One of the most dangerous weapons in the armoury available to all citizens is the ordinary domestic kitchen knife. If this course of conduct is embarked upon there is always the real risk that victims legitimately will resist whereupon the stakes become mortal in the inevitable escalation of criminality.

76 The jury by its verdict of guilty of manslaughter found that it was in the contemplation of JD that the knife would be used for an unlawful and dangerous act, the dangerous act being the infliction of really serious bodily injury. It is a serious manslaughter and the jointly planned crime of the robbery was callous. JD, I find, burst into the backyard, not because of shouting, but as part of a pincer movement to effect the putting the victim in fear to bring about the robbery.

77 In relation to s 21A, I propose to take the same approach to JD as I did with Feras. The offences involved the actual threat and use of violence, the actual or threatened use of weapons and were committed in company. They were part of a planned criminal activity. On the mitigation side, JD does not have any record and on the evidence he appears otherwise to be a person of good character and is unlikely to re offend. He also has good prospects of rehabilitation by reason of his age and by reason of the matters referred to in the psychiatric and psychological material, and to the Cobham staff references forming part of Exhibit 5.

78 I accept in this instance the reporting of the offender as showing remorse is genuine.

79 As I did with Feras, s 21A(5) will apply and whilst aggravating and mitigating factors are known to the Court I do not propose to increase or reduce the sentences for the offences thereby.

80 That does not mean that I cannot and do not propose to find special circumstances in relation to JD, both in the generally understood sense and for the purposes of s 19(3) of the Children (Criminal Proceedings) Act 1987.

81 I identify those special circumstances:

1. JD is still 19 and will turn 21 on 21 May 2006. This is his first time in custody.

2. The attention his health requires which he is receiving in the detention centre and that should be continued.

3. He has particularly good prospects of rehabilitation which would be compromised, in my view, by removal to an adult gaol and would be benefitted probably by continuation of detention in a juvenile detention centre and the furtherance of the rehabilitation and educational regime in that place.

82 These factors also will go to vary the ratio between the non-parole period and parole period or, in other words, to reduce the non-parole period that would normally apply by reason of the operation of s 44 of the Crimes (Sentencing Procedure) Act. This will be reflected in the manslaughter sentence. The sentence for the robbery will to some extent reflect this even after rounding down the calculations in the offender's favour.

83 It is regrettable that the modern statutory provisions as to sentencing takes no account of the rigors of the application of mathematics. I am also of the view that the substance of the sentence does not require cumulation but rather that the appropriate totality can be achieved by concurrent sentences, as can the satisfying of the requirement of general deterrence. Nonetheless the sentence will be of some substance, certainly in excess of that which Mr Boulten suggested, which I took to be one that would procure JD's release almost immediately. That would offend the principles that the objective seriousness of the criminal conduct must be appropriately reflected in the sentence. I do not consider that Henry applies to JD, though the criminality could be described as being at the bottom of that range which commences at the top of the Henry scale.

JD

84 In respect of each charge of which you have been found guilty you are convicted. For the robbery of Rosalie Taylor whilst being armed with an offensive weapon, namely a replica pistol, having reduced the term of 5 years and 6 months by 25 per cent, after rounding down the figures in your favour to 4 years and 1 month, I sentence you to imprisonment for a non-parole period of 3 years to commence 25 March 2003 and to expire on 24 March 2006, on which date you will be eligible for release to parole for this offence.

85 I fix a parole period of 1 year and 1 month to commence 25 March 2006 and to expire 24 April 2007.

86 In respect of the jury's verdict of manslaughter, having reduced the term of 7 years by 25 per cent to 5 years and 3 months, I sentence you to imprisonment with a non-parole period of 3 years to commence 25 March 2003 and to expire 24 March 2006, on which date you will be eligible for release to parole.

87 I fix a parole period of 2 years 3 months to commence 25 March 2006 and to expire 24 June 2008.

88 Having found special circumstances under s 19(3) of the Children (Criminal Proceedings) Act, I direct the non-parole period be served in a juvenile detention centre and recommend Cobham. I direct it be a condition upon your being released to parole you be supervised as to:

(a) your health;

(b) your psychological treatment; and

(c) your continuing further education.

Feras Dehaybi

89 In respect of each charge of which you have been found guilty you are convicted. For the robbery of Rosalie Taylor being armed with an offensive weapon, namely a knife (count 1), you are sentenced to imprisonment for a fixed term of 6 years to commence 23 March 2003 and to expire 22 March 2009. I have made that a fixed term in view of the two sentences I now propose to impose.

90 For the malicious wounding of Robert Taylor with intent to cause grievous bodily harm (count 2), you are sentenced to imprisonment for a non-parole period of 9 years to commence 23 March 2003 and to expire 22 March 2012.

91 On that date in respect of that offence you would be eligible for release to parole. That parole period is 3 years to commence 23 March 2012 and to expire 22 March 2015.

92 For the murder of Simon Taylor you are sentenced to imprisonment for a non-parole period of 18 years to commence 23 March 2005 and to expire 22 March 2023, on which date you will be eligible for release to parole.

93 The parole period is 6 years to commence 23 March 2023 and to expire 22 March 2029.

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