R v Eleter

[2002] NSWSC 1224

CITATION:	R v Eleter [2002] NSWSC 1224
CURRENT JURISDICTION:	Common Law Division Criminal
FILE NUMBER(S):	SC 70207/02; 70208/02; 70017/02; 70209/02; 70063/02
HEARING DATE(S):	18 September, 29 November & 6 December 2002
JUDGMENT DATE:	20 December 2002
PARTIES :	Michael ELETER Tony ELETER George ELETER Youssef ELETER JO
JUDGMENT OF:	Dunford J

COUNSEL :	M Hobart / R Ranken (sol) / T Thorpe (Crown) C Steirn SC / G Smirilios (Michael Eleter) G Jones (Tony Eleter) S Wilkinson / W Washington (George Eleter) D Campbell SC / J Castaldi (Youssef Eleter) J Spencer / M Crowley (JO)
SOLICITORS:	SE O'Connor (Crown) Chahoud Kalouche & Associates (Michael Eleter) Michie, Shehadie & Co (Tony Eleter) Ford Gaitanis Lawyers (George Eleter) Freemans Solicitors (Youssef Eleter) MacElbing Mednis & Associates (JO)
CATCHWORDS:	SENTENCING - murder with aggravated armed robbery taken into account - affray - act to pervert the course of justice - young offender
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987, s 11 Crimes (Sentencing Procedure) Act 1999, ss 21A, 32 & 44 Crimes Act 1900, ss 93B, 93C, 93D & 319
CASES CITED:	The Queen v De Simoni (1981) 147 CLR 383 R v Qutami [2001] NSWCCA 353 R v Palu [2002] NSWCCA 381 R v Niketic [2002] NSWCCA 425 R v Huynh [2000] NSWCCA 18 R v Atholwood (1999) 109 A Crim R 465 R v Ainsworth (1994) 76 A Crim R 127 R v Hearne [1999] NSWSC 605 R v Huynh & Phung [2001] NSWSC 357 R v Townsend & Copper (NSWCCA - unreported - 14 February 1995) R v Pham (1991) 55 A Crim R 128 R v XYJ (NSWCCA - unreported - 15 June 1992) R v GDP (1991) 53 A Crim R 112 R v Harris (2001) 125 A Crim R 27 R v Bavadra (2000) 115 A Crim R 152 R v Lemene (2001) 118 A Crim R 131
DECISION:	See paras 60-68

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL

DUNFORD J

Friday, 20 DECEMBER 2002

70207/02 R v Michael ELETER
70208/02 R v Tony ELETER
70017/02 R v George ELETER
70209/02 R v Youssef Peter ELETER
70063/02 R v JO

REMARKS ON SENTENCE

(Note: The prisoner JO was under the age of 18 at the time of committing the offences the subject of these proceedings, and accordingly the publication of his name outside the Court is prohibited by the Children (Criminal Proceedings) Act 1987, s 11).

1 His Honour: On 18 September last, the prisoner Michael Eleter pleaded guilty to the murder of Victor Zaccak and requested that a further charge of aggravated armed robbery be taken into account in accordance with the Crimes (Sentencing Procedure) Act 1999, s 32. On the same day the prisoners Tony Eleter, George Eleter, Youssef Eleter and JO pleaded guilty to a charge of affray, and on 29 November JO pleaded guilty to a further charge of an act intending to pervert the course of justice. The charge of affray carries a maximum penalty of imprisonment for 5 years: Crimes Act 1900, s 93C and an act intending to pervert the course of justice carries a maximum penalty of imprisonment for 14 years: s 319.

2 In relation to the charges of murder and affray, Statements of Agreed Facts (Exs B and C) were tendered. Those facts have been supplemented by a number of statements (part Ex D) tendered by the Crown. Initially objection was taken to these additional statements, but after minor editing thereof they were admitted on the basis that they supplement and expand, but do not contradict, what is contained in the Statements of Agreed Facts. In relation to the charge of act intending to pervert the course of justice the Crown tendered by consent a Statement of Agreed Facts, a number of statements and transcripts of intercepted telephone calls (Ex E), and in relation to the charge of aggravated armed robbery, a statement of facts is annexed to the Form 1 (Ex A).

3 On the afternoon of 3 November 2000, Tony Eleter went to La Hood’s Snooker Hall in Beamish Street, Campsie with JO where George Dib was playing pool with a friend of his, Khalil Gerges. There was a confrontation between Dib and Tony Eleter at the snooker hall and they agreed to have a fistfight at a nearby park, which they did, with JO and Khalil Gerges looking on. In the fight both sustained cuts and bruises and both were bleeding to the face. At the end of the fight they shook hands and went their separate ways, accompanied respectively by JO and Khalil Gerges.

4 There had previously been animosity between Dib and Michael Eleter, the older brother of Tony Eleter, in relation to a debt and when Michael Eleter learned that evening of the fist fight between his brother and Dib he became angry upon seeing Tony’s injuries and this exacerbated the pre-existing enmity that Michael Eleter felt towards Dib (Ex B).

5 After the fight Dib went to the Total Eternity Services brothel at 2 Clements Street, Bankstown where he worked, had a spa and shower, cleaned himself up and got dressed. At about this time, Joseph Attallah, owner of the brothel began to receive threatening telephone calls from other members of the Eleter family to the effect that family members would be coming to the brothel to exact revenge for the fight between Tony Eleter and Dib earlier in the park. Attallah told them he did not want any trouble at the brothel.

6 At about 6.15pm, Tony Eleter, his father, Youssef Eleter, and his twin brother, George Eleter, arrived outside the brothel in a motor vehicle, and at about the same time, or very shortly after, JO arrived in his vehicle, along with Michael Eleter and other young men, whose identities are not known. Michael Eleter was armed with a 9-millimetre automatic pistol, later identified as the murder weapon.

7 Attallah and Dib were already in the front yard of the brothel premises and an argument developed between them and the persons who arrived in the first vehicle (Youssef Eleter, Tony Eleter and George Eleter). The group from the second vehicle then joined them in the front yard of the brothel and the argument became more heated. Dib and Attallah retreated towards the front door of the premises and tried to block the group from entering. Tony Eleter struck Attallah to the head, causing a cut to his head and the groups then surged forward with Youssef pushing his way into the premises and forcing Dib and Attallah back into the premises. Once Youssef was inside the premises he closed the door behind him, leaving the rest of the Eleters and JO outside. Youssef Eleter then continued to struggle with Attallah inside the premises and Youssef and Attallah were screaming at each other.

8 About this time Michael Eleter fired 10 shots at the front windows on either side of the entrance to the premises. Victor Zaccak who was inside the front office of the premises, was struck by one of these bullets and died almost immediately. Shortly afterwards, the prisoners returned to their respective vehicles and left the scene. There was no evidence that Michael Eleter was aware at the time that anyone had been injured. The plea to murder by Michael Eleter was tendered by the prisoner and accepted by the Crown on the basis that in firing the shots as he did, the prisoner acted with a reckless indifference to human life.

9 On 5 November 2000, police searched JO’s vehicle which had been identified as being present at the time (registration no. VTS-169) and underneath the driver’s seat they located a black Adidas bum bag which contained one fired cartridge case that was subsequently ballistically matched to the cartridge cases found at the scene of the shooting. On 7 November 2000, a search warrant was executed at the Eleter family home at 33 Sharp Street, Belmore and during the search a live 9-millimetre round was thrown from a window into a neighbour’s yard. A forensic ballistic examination confirmed that this round had been chambered and extracted from the same weapon as that fired outside the brothel.

10 After the incident at the brothel, JO attended a party in Campsie, arriving some time after 7pm. He was arrested the following morning and charged with affray but declined to be interviewed. Lawfully obtained telephone intercepts were subsequently recorded in which JO discussed the incident with members of the Eleter family and with young persons who had also been present at the party he attended on the evening of 3 November. On 18 November he had a meeting with some of them and arranged for three of them in particular to provide police with false statements to the effect that he had arrived at the place where the party was held between 4.30 and 5pm on the evening of 3 November 2000 and had stayed there for the remainder of the evening. Subsequently, when they told him they were going to, or were at the police station waiting to, make statements, he again urged them to provide him with a false alibi which at least three of them did. It is these matters which give rise to the charge of acting with intent to pervert the course of justice.

11 In relation to the aggravated armed robbery charge against Michael Eleter, the facts briefly are that at about 1pm on Tuesday, 11 April 2000, the victim, Tania Zouki, and a friend left the Super Save Service Station in Casula, carrying the weekend takings, amounting to $34,250 in cash in a handbag. She then drove her vehicle towards the Liverpool CBD and whilst doing so noticed that she was being followed by a small red coloured Japanese vehicle with interstate registration plates. She parked in the rear car park of the St George Bank in Northumberland Street, Liverpool and she and her companion got out of the vehicle and walked towards the bank, but as she approached the rear door a male called out to her, she stopped and turned to face him and found him running towards her, holding a chrome coloured firearm in his right hand. He ripped the handbag containing the weekend takings from her right shoulder and then ran off with the bag towards the small red vehicle. A number of witnesses gave chase and as one of them, the security manager, approached the offender and attempted to grab him, the robber turned towards him, pointed the firearm at his chest and said, “get back or I will shoot”. He was then picked up by the small red car and as he did so he turned and fired a shot into the air, leaving a spent 9-millimetre cartridge located at the scene.

12 A number of witnesses reported the registration number of the vehicle and inquiries revealed that it was a rental car hired to the prisoner, Michael Eleter, since February 2000, and some hours later, the vehicle was discovered burnt out at Bungonia, an isolated rural area between Marulan and Goulburn. The following day the prisoner attended Liverpool Police Station and told police that the previous day he had travelled to the family property at Mittagong about 11am that day with his father, two brothers and a cousin, leaving the vehicle locked and secured at his home address in Fourth Avenue, Campsie; but that when he returned home at 8.40pm that evening he discovered the vehicle missing so he contacted police and reported the vehicle stolen.

13 After the murder and affray at the Total Eternity Services brothel on 3 November, police were able to match the shell found at the scene of the robbery with the pistol used by Michael Eleter in the murder of Victor Zaccak, and Land Titles Office inquiries revealed that Peter Eleter, brother of Michael Eleter, was recorded as owner of premises at lot 3, Jerrara Road, Bungonia where a search warrant was executed on 2 March 2001, during the course of which police located six unfired 9-millimetre rounds and one spent 9-millimetre cartridge, which also matched the spent cartridges from the murder scene and the 9-millimetre pistol. The property was 10 km away from where the motor vehicle had been found and was on the same roadway.

14 They were also able to gain access to call charges for the prisoner’s mobile phone which indicated that calls on the morning of the robbery placed the phone near the Cross Roads repeater tower, after which calls were directed through repeater towers at Casula, Menangle Park, Bargo, Colo Vale and Marulan in direct contradiction to the version of his movements given by the prisoner, but consistent with him driving the motor vehicle after the robbery to the family’s Bungonia property. There were also two photo identifications of the prisoner by the victim and a witness who was nearby, but they were unable to identify him as being the person with the pistol, and it was submitted that he was rather the person driving the vehicle. In my view it does not matter whether he drove the vehicle or carried the pistol and seized the bag containing the money, both robbers were equally guilty and it was his pistol.

15 The prisoners were all originally charged with murder and affray and following committal and arraignment their trial was set for Monday, 16 September 2002. That day I was asked by all parties to adjourn the matter for two days, which I did and then on 18 September I was asked to remain off the Bench for some considerable time, after which the Crown presented a fresh indictment containing only the charges now before the Court. To these charges the prisoners pleaded guilty as indicated on the basis of Agreed Statements of Facts.

16 It concerns me that in the Crown Case Statement prepared prior to the trial there were allegations that, apart from Michael Eleter, two of the other prisoners were also armed with handguns when they went to the brothel, and that prior to them going there, Mrs Attallah had been approached at her home by members of the Eleter family and told that George Dib would be dead within a week. These facts were omitted from the Agreed Statement of Facts, I cannot take them into account in sentencing; and I do not. Needless to say, I would have regarded an affray with guns as much more serious than an affray without guns, and I would also regard a threat that George Dib would be dead within a week as a matter of the utmost concern. If those matters had formed part of the facts for sentencing purposes, I would have regarded the affray as close to the worst category of case attracting the maximum penalty, or close to it, for such offence. But in accordance with the principles laid down in The Queen v De Simoni (1981) 147 CLR 383, I disregard those matters which are not part of the Agreed Facts and which have not been proved.

17 I am not in a position to judge how strong the evidence was that was available to the Crown on these points, but whilst the Crown’s acceptance of pleas of guilty on the basis of excluding material facts which aggravate the criminality of the conduct involved may effect a great saving of court time and help clear the backlog in the court lists, it often results in the offenders not being adequately punished for what they have done; and in this way justice is denied to the community as a whole. If accused persons are minded to plead guilty to charges but dispute the Crown’s version of the facts, it is still open to them to do so, in which case the Crown must prove the facts disputed by admissible evidence and beyond reasonable doubt.

18 Even limited to the Statements of Agreed Facts, all of these offences were particularly serious. The murder of another human being is always a most serious offence and by his plea of guilty to murder on the ground of reckless indifference, Michael Eleter has admitted that he foresaw that it was probable that someone would be killed by his random shooting, and it also raises the question of why was he in possession of a gun of any kind in the first place, although this is partly explained by the matter on the Form 1, namely to do armed robbery. The armed robbery itself was obviously well planned, and it was carried out with some sophistication including the disposal of the vehicle and the elaborate alibi provided to police the following day.

19 Although not always expressed in the same terms, the prisoners generally claimed to the persons who prepared the Pre-Sentence Reports that they went to the brothel premises so that the elders (presumably Youssef Eleter and Joseph Attallah) could by discussion over coffee in a traditional cultural manner resolve the conflict between Tony Eleter and George Dib which had given rise to the fight between them earlier that day and find a solution, although Michael also said that the earlier fight had aroused his anger and there had been previous animosity between him and Dib.

20 JO said that after the fight he was helping Tony Eleter clean himself up in the bathroom when one of the brothers came and told them that their father had left the house and driven away in the car and that they needed to follow, whereupon he got into his car and with the other co-offenders followed the father’s car. He claims he was not aware of their intentions or that any of them had weapons and he does not, from the Agreed Facts, appear to have played a particularly significant part in the affray when he arrived at the scene.

21 If only a meeting between “elders” over coffee was intended, it is difficult to see why three of the sons as well as JO attended, what need there was to “find a solution” as the parties to the fist fight had on the evidence shaken hands at its conclusion, and why there would be any occasion for threatening phone calls to Joseph Attallah before they went to his premises. Moreover, a friendly chat over a cup of coffee seems inconsistent with Tony Eleter striking Joseph Attallah on the head causing a cut to his forehead or Youssef Eleter pushing his way into the premises, shutting the door behind him and continuing to struggle with Attallah inside the premises. By their pleas each of them admit that they intended to use or threaten violence or were aware that their conduct might be violent: Crimes Act 1900, s 93D(2).

22 None of the prisoners have given evidence on sentence and none of their self serving statements given to the officers who prepared the Pre-Sentence Reports have been tested by cross-examination, so they must be given limited weight and I am not bound to accept them: R v Qutami [2001] NSWCCA 353, R v Palu [2002] NSWCCA 381, R v Niketic [2002] NSWCCA 425.

23 In all the circumstances, and within the limits of the Agreed Facts, I am satisfied beyond reasonable doubt that they went to the brothel with the purpose of exacting retribution and/or revenge from George Dib for the fight he had had earlier that day with Tony Eleter.

24 I was referred to R v Huynh [2000] NSWCCA 18 at [29] where a distinction was drawn between premeditated affrays, including pitched street battles of rival groups, and affrays which break out spontaneously in response to an unforseen event. See also Thomas: Principles of Sentencing, 2nd ed at 111.

25 The Crown concedes that this affray was not premeditated in the sense of being a pre-arranged or anticipated street battle between conflicting groups, and that there is no evidence of pre-concert, but submits that it was not totally spontaneous in that they went to the premises by car in numbers for some common purpose some time after the fight in the park. I am satisfied that it is really a question of degree, and although not totally spontaneous, it was towards the lower end and not what is regarded in this type of case as premeditated.

26 The offence of affray, like that of riot (s 93B), is directed to maintaining public order and there is no room in this community for people settling their personal disputes by taking the law into their own hands, and particularly in attempting to do so by force of numbers.

27 Whatever the cultural traditions may be, or are alleged to be, in the prisoners’ mother country, such conduct will not be tolerated in this country, and penalties need to be imposed which send a clear message of general deterrence to anyone who might otherwise be inclined to act in a similar manner, as well as deterring the prisoners from acting similarly in the future. Family solidarity and support is a commendable virtue, but not when it causes a breach of the peace and threatens the lives or comfort of other people.

28 I am particularly concerned about the conduct of Youssef, as the father who no doubt exercised paternal influence over the others, and appears to have led the approach at the premises of Total Eternity Services when, not only should he not have been involved himself, but he should have discouraged and sought to prevent any such action on his sons’ part. I therefore regard him as more responsible than the others for the affray.

29 Assuming as I must for sentencing purposes, although the true facts are probably otherwise, that none of the others knew that Michael Eleter had a gun, there is always the danger in cases of affray that someone will overreact or do something unexpected and the situation will get out of hand, which is exactly what happened.

30 All the prisoners have pleaded guilty and although they were all originally charged with murder and affray and only pleaded guilty to murder (in the case of Michael Eleter) or affray (in the case of the others) on what would have been the third day of the trial, it is conceded by the Crown that it was only then that the Crown agreed to drop the other charges against each prisoner and accept the relevant Statements of Agreed Facts; and that accordingly they should each be regarded as having pleaded guilty at the earliest opportunity, cf R v Atholwood (1999) 109 A Crim R 465 at 468.

31 I note this concession and have discounted each of the sentences which I would otherwise have imposed by 20% on account of the utilitarian value of the pleas.

32 There is no prima facie presumption that murder resulting from reckless indifference to human life is less culpable than murder resulting from intent to kill or do grievous bodily harm: R v Ainsworth (1994) 76 A Crim R 127 at 139, and firing 10 shots at random at a building when persons were known to be inside bespeaks a very high degree of culpability. The deceased had done nothing wrong, he was not in any way involved in the dispute which brought the Eleters to the brothel, and his death was due entirely to Michael Eleter’s conduct.

33 Moreover, the murder weapon was a handgun and there simply was no reason for Michael Eleter to be in possession of a handgun that evening particularly if, as claimed, they were only going there for the elders to have a discussion over a cup of coffee. This community is heartily sick of people carrying guns (or knives for that matter), the carrying of such weapons naturally raises the risk that they will be used and increases the need for sentences in this area to reflect the need for general deterrence: R v Hearne [1999] NSWSC 605 at [56], R v Huynh & Phung [2001] NSWSC 357 at [78]-[79].

34 Although Michael Eleter was comparatively young at the time of the offence (he was 24 years of age), in the case of crimes of considerable gravity, particularly acts of violence, retribution and deterrence remain significant in determining the appropriate sentence: R v Townsend & Copper (NSWCCA - unreported - 14 February 1995), R v Pham (1991) 55 A Crim R 128, and the fact that he has “poor impulse control” or a significant inability to manage anger appropriately are not matters going to mitigation.

35 Similarly, I do no regard the youth of Tony and George Eleter (they were 19 years of age) as any reason in their case to diminish the significance of general and personal deterrence in their sentences as they are of the age who most need deterrence from offences of this nature.

36 Different considerations however are applicable to JO who was only 17 years of age at the time of the offences; and the courts have recognised that in the case of young persons considerations of punishment and general deterrence should generally give way to considerations of rehabilitation: R v XYJ (NSWCCA - unreported - 15 June 1992), R v GDP (1991) 53 A Crim R 112.

37 Youssef Eleter (the father) was born in Lebanon on 4 March 1954, one of five children. He migrated to Australia in 1973 aged 19 to live with his elder sister who was already living here, but who has subsequently died. The same year he married in Australia and there are five children of the marriage, Peter, Michael born 26 May 1976, Tony and George, twins born 7 March 1981 and their younger sister. In 1987 the whole family moved back to Lebanon. Michael returned to Australia in 1995 and the rest of the family in 1997, and have all resided here since.

38 Youssef was educated in Lebanon and on his first arrival in Australia worked as a factory hand. His previous employment background in Lebanon was in the tyre retread industry and the family are said to be the owners of six tyre shops in Lebanon but these were leased out to others when the family returned to Australia in 1997. Since then the family has conducted a removalist business. He has not worked for the last six years due to his medical condition, being deformity and displacement osteoarthritis of his left wrist, ring finger and right elbow causing severe pain and limited movement of his elbow and wrist. He also suffers from a right para-umbilical hernia and is said to be taking antidepressant medication. He has minor drug convictions in 1983 and a conviction for assault in 1996.

39 He also suffers the health problems described in the Pre-Sentence Report which will make a custodial sentence more onerous. So far as I can see he has not directly expressed any remorse or contrition for his actions nor, apart from his plea of guilty, acknowledged that what he did was wrong, and according to the Pre-Sentence Report he conveys that Michael was not responsible for the death of the deceased.

40 Michael Eleter completed the equivalent of the Higher School Certificate in Lebanon and the first year of an electrical engineering course at a technical institute, prior to returning to Australia to live in 1995. He was married in 1997 and he and his wife separated after three years and later divorced citing irreconcilable differences, due in part to their youth at the time of their marriage. They have remained on reasonable terms and have no children. He has subsequently had a relationship with a young lady but the nine-month relationship ended when he went into custody following his arrest on the present matter. He has been in regular employment as a warehouse clerk and customer services officer until 1998, since which time he has worked in the family’s furniture removal business in a variety of positions, including truck driver as well as administration work.

41 He said that after the breakdown of his marriage he began mixing with undesirable associates who enjoyed the “partying lifestyle” and who used drugs although he claimed that he did not do so. It was suggested to him that anger/aggression may be an issue relevant to his offending behaviour and he apparently accepted this suggestion and since he has been in custody he has attended part of an anger management course and has subsequently commenced a stress management program.

42 He claimed that he obtained the gun used in the shooting in 1999 for self protection following a drive by shooting involving a number of shots being fired into his family home, one shot narrowly missing him, but there is no supporting evidence that there was such a shooting involving his family or their home and the use to which the gun has been put is demonstrated by its use in the armed robbery on 11 April 2000 appearing on the Form 1. He has previous convictions in 1996 for common assault and in 1998 for maliciously damage property. I have read the report of Dr JA Roberts and noted his comments.

43 He has expressed remorse in varying degrees to the person who prepared the Pre-Sentence Report, to Dr Roberts and most recently in a letter to me tendered at the sentence hearing (Ex 8). Considering the late stage at which this letter was produced, the possibility of assistance or guidance in preparing it, and the fact that being tendered in letter form rather than by evidence on oath and the prisoner was not subject to cross-examination, I receive it with some reservation, but nevertheless accept that he now accepts responsibility for the victim’s death and acknowledges the pain caused to the victim’s family, but he seems as much concerned for the difficulties, stress and trauma caused to his own family. I reject his claim in the Pre-Sentence Report that he fired the 10 shots into the air with the intention of dispersing the group, and he does not give any explanation or comment in relation to the armed robbery.

44 I have read the Victim Impact Statements, and acknowledge the grief, anger and sense of loss on the part of the victim’s family, but in accordance with authority I cannot take them into account in fixing the appropriate sentence.

45 Tony Eleter was also educated in Lebanon and left school at the age of 16 after completing the equivalent of Year 8. He undertook an apprenticeship as an electrician in Lebanon before returning to Australia but his qualifications were not recognised and he has since worked in the family furniture removal business. He is currently involved in a three-year relationship, and this is supported by an affidavit of his girlfriend.

46 His Pre-Sentence Report is to a degree unsatisfactory in that the interview seems to have been dominated by the eldest brother. It was claimed during the interview that Attallah, a family friend of long standing and Godfather of George Eleter, was involved in the supply of drugs as well as sex and had sought to coerce the Eleter family into the drug business on a previous occasion, although the fist fight between Tony Eleter and George Dib earlier in the day related to lawful business issues and a refusal to undertake a particular job, although the statement of George Dib in Ex D suggests that Tony Eleter deliberately provoked the fight. According to the Report the view of the family spokesman (the elder brother) that appeared to be supported by other members of the family, was that one family member will have to pay the price for these events and the rest of the family should be left alone to resume their normal lifestyles.

47 To the psychologist, Kerry Watson, he expressed guilt for his father’s and brothers’ involvement and personal responsibility for the difficulties experienced by other members of the family as a result of the incident, and apparently spoke a lot of family solidarity and support, but I can see little evidence of genuine contrition or acknowledgement of guilt in respect of the affray itself. He has a conviction for assault police less than two months before the date of the offence.

48 George Eleter (twin brother of Tony) was also educated in Lebanon, trained as an apprentice electrician in Lebanon, but since returning to his country has worked in the family furniture removalist business. According to the Pre-Sentence Report he stated that it was sad that someone died but claimed that the incident appeared to have grown out of the efforts of Dib as an employee of Joseph Attallah to stand over Tony Eleter in order to have both twins deal in drugs, and he presented as a person who believed that the affray was caused, not by the Eleter family, but by Attallah and his employees. The officer who prepared the Report considered there was general consensus in the family presentation that none of the family did any violence in the affray, “including that of murder”.

49 To the psychologist, Kerry Watson, he constantly referred to family unity, dependence and significant obligation among family members to support each other and disputed his participation and personal responsibility, but at the sentence hearing his counsel informed me that he now fully understands the constituent elements that make up the offence and nothing in the Pre-Sentence Report should be taken as a denigration from responsibility in terms of the elements of the offence being made out, thus indicating that he does not seek to traverse his plea, but once again I saw little, if anything, by way of contrition, remorse, or acceptance of personal responsibility for his participation in the affray.

50 To sum up the general attitude of the various members of the Eleter family seems to be that they were justified and there was nothing wrong in them going to the brothel as a group intending to use or threaten violence, that that such conduct was quite in order because of their strong family solidarity and support for each other, but that it is most unfortunate and they truly regret that anyone got killed.

51 JO was born on 5 December 1982 and was a month short of his 18th birthday at the time of the offence. There is no evidence that he was involved in any threatening phone calls or was aware of them or that he was aware Michael Eleter had a gun. He is not a member of the Eleter family, nor it would seem, a relation, but seems to have been caught up with events as they unexpectedly unfolded.

52 According to the Department of Juvenile Justice Report, he appears to have acknowledged his offending behaviour and expressed genuine remorse for his participation. He is very much on the borderline between youthful and adult offender, but having regard to his age, it is more appropriate to place less emphasis in his case on the issue of general deterrence and more on the issue of rehabilitation: R v XYJ (NSWCCA - unreported - 15 June 1992). Since leaving school and until his incarceration he has been in regular employment and appears to possess a strong work ethic.

53 In relation to the other charge of act to pervert the course of justice, it would seem that having been charged with the affray, he then learnt of the death of the deceased and panicked, thus leading to the telephone calls seeking to have his friends provide a false alibi, in which he was encouraged by George Eleter. The offence of acting with intent to pervert the course of justice is generally a very serious offence because it strikes at the very administration of justice; and whilst it cannot be excused, one can see how a young person in a situation of panic could act in this way without appreciating the full implications of what he was doing. In my view these considerations justify dealing leniently with JO in relation to this matter.

54 In relation to Michael Eleter the nature of the offence requires a significant sentence which will be discounted by 20% for the utilitarian value of his plea of guilty, but the matter on the Form 1 requires an additional period to be included in the sentence. Such additional period needs to be significant to reflect the total criminality involved, but it should be less than what the offence would carry if it were the subject of a separate charge: R v Harris (2001) 125 A Crim R 27, R v Bavadra (2000) 115 A Crim R 152, R v Lemene (2001) 118 A Crim R 131. I note that in this case the matter on the Form 1 of itself carries a maximum penalty of 25 years.

55 In relation to the counts of affray, I am satisfied that the offenders are all entitled to a significant discount in the order of 20% for the utilitarian value of their pleas of guilty, but except in the case of JO, I can see no evidence of genuine contrition or remorse, other than for the distress relating to their own position and that of the other members of their family.

56 Because particularly of the strong need in the present case for personal and general deterrence, I am satisfied that in relation to the adult offenders no penalty other than full-time custody is appropriate, and I have taken into account the various matters set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. All the accused were in custody for a period of time in relation to these matters before being released on bail and the sentences will be backdated accordingly to take account of that incarceration.

57 The pre-sentence custody periods were as follows:

Michael Eleter since 1 February 2001
Tony Eleter 214 days
Youssef Eleter 76 days
George Eleter 155 days
JO 106 days.

58 In relation to the affray, I consider that, after allowing for the pleas of guilty, each of the adult offenders should serve a sentence of 16 months full-time imprisonment with a non-parole period of 12 months.

59 Although, as I have said, I regard the culpability of Youssef Eleter as greater than that of the others, I will not impose a longer term of imprisonment on him as I consider his incarceration will be more onerous than that of the others owing to his greater age and his physical infirmities. I find there are no special circumstances warranting a variation in the proportion of the non-parole periods to the head sentences prescribed by s 44(2) of the Act as matters of mitigation have been taken into account in fixing the head sentences including the more onerous nature of imprisonment for Youssef Eleter.

60 Michael Eleter for the murder of Victor Zaccak and taking into account the matter on the Form 1, I sentence you to imprisonment for 18 years, such sentence to be deemed to have commenced on 1 February 2001 and expiring 31 January 2019. I fix a non-parole period of 13½ years. The earliest date on which you will be eligible to be released on parole will be 31 July 2014.

61 Youssef Eleter on the charge of affray I sentence you to imprisonment for 16 months such sentence to be deemed to have commenced on 15 October 2002 and to expire 14 February 2004. I fix a non-parole period of 12 months; the earliest date on which you will be eligible to be released on parole will be 14 October 2003.

62 Tony Eleter on the charge of affray I sentence you to imprisonment for 16 months such sentence to be deemed to have commenced on 16 May 2002 and to expire 15 September 2003. I fix a non-parole period of 12 months; the earliest date on which you will be eligible to be released on parole will be 15 May 2003.

63 George Eleter on the charge of affray I sentence you to imprisonment for 16 months such sentence to be deemed to have commenced on 20 July 2002 and to expire 19 November 2003. I fix a non-parole period of 12 months; the earliest date on which you will be eligible to be released on parole will be 19 July 2003.

64 JO on the charge of affray and taking into account your pre-sentence custody I sentence you to imprisonment for 12 months with a non-parole period of nine months and I order that the non-parole period be served by way of periodic detention. You are ordered to report to the Periodic Detention Centre at Silverwater on Thursday, 2 January 2003 at 8.30am and each week thereafter on Wednesday at 5pm or 7pm.

65 On the charge of act intending to pervert the course of justice you are convicted and I order you to enter into a bond to be of good behaviour for a period of three years, such bond to be subject to the further condition that you appear before the Court if called on to do so at any time during the term of the bond, that you inform the Registrar of this Court of any change in your residential address during that period and that you place yourself under the direction of the Probation and Parole Service and obey all reasonable directions of such Service; and that for this purpose you report to the Bankstown office of such service within 14 days of today.

66 I further order that you forthwith accompany your legal representative to the Supreme Court Criminal Registry at Queen Square to complete the necessary documentation for Periodic Detention and to enter into the Bond. I order that the Periodic Detention be served in an adult institution.

67 In relation to any outstanding charges referred to in the Certificate pursuant to s 36 of the Criminal Procedure Act 1986 which have not heretofore been dealt with I remit those charges to the Children’s Court at Bidura and I recommend that no further action be taken on them.

68 In respect of all the prisoners except Michael Eleter, I order that they be released at the expiration of their non-parole periods subject to the conditions prescribed by the Regulations.

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Last Modified: 02/06/2003