R v EM

[2005] NSWSC 212

CITATION:	R v EM [2005] NSWSC 212
HEARING DATE(S):	18/10/04, 20-21/10/04, 27-28/10/04, 01-05/11/04, 08-11/11/04, 15-19/11/04, 22-26/11/04
JUDGMENT DATE :	23 March 2005
JUDGMENT OF:	James J at 1
DECISION:	Sentenced to terms of imprisonment totalling 36 years with a non-parole period of 27 years.

CATCHWORDS:	CRIMINAL LAW - remarks on sentence - murder - assault with a dangerous weapon - fire a firearm with disregard for safety - robbery whilst armed with a dangerous weapon
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act Evidence Act
CASES CITED:	Cheung v The Queen (2001) 209 CLR 1 Olbrich v The Queen (1999) 199 CLR 270 R v Isaacs (1997) 41 NSWLR 374 R v Jacobs and Mehajer [2004] NSWCCA 462 R v Hearne (2001) 124 A Crim R 451 R v Henry (1999) 46 NSWLR 346 R v Mills: unreported, NSWCCA 3 April 1995
PARTIES:	Regina v Sophear EM
FILE NUMBER(S):	SC 2003/24; 2002/89
COUNSEL:	J Bennett SC - Crown Ms L Flannery - Prisoner
SOLICITORS:	Ms T Smith - Crown Ms N Marshall LAC - Prisoner

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Wednesday 23 March 2005

2002/89 Regina v Sophear EM
2003/24 Regina v Sophear EM

Remarks on Sentence

1 HIS HONOUR: On 26 November 2004, after a trial presided over by me, the jury found Sophear Em (whom I will refer to as “the prisoner”) guilty on all three counts in the indictment which had been presented on 3 November 2004 at the commencement of the trial, namely that on 7 January 2002 he had murdered Joseph Logozzo (the first count), that on the same date being armed with a dangerous weapon he had assaulted Joseph Logozzo with intent to rob him (the second count) and that on the same date he had fired a firearm with disregard for the safety of Marianne Logozzo, Mr Joseph Logozzo’s wife (the third count). It will be convenient to refer to these three offences as “the Logozzo offences”.

2 Under s 19A of the Crimes Act the maximum penalty for the crime of murder is imprisonment for the life of the offender. The second count in the indictment charged an offence under s 97(2) of the Crimes Act for which the maximum penalty is imprisonment for twenty-five years. The third count in the indictment charged an offence under s 93G(1)(c) of the Crimes Act for which the maximum penalty is imprisonment for ten years.

3 The trial which commenced on 3 November 2004 had been set down as a trial, not only of the three counts in the indictment to which I have referred, but of five other charges as well. However, on 3 November 2004, in the absence of the jury panel which had been summoned for the trial and before any jury was empanelled, the prisoner pleaded guilty to those five other charges, which were charges that on 17 January 2002 being armed with a dangerous weapon he had robbed five individuals, Mr Michael Kress, his wife Mrs Beverly Kress, his daughter Alyson Kress, his son Jonathon Kress and Ramzi Tamer who was a friend of his daughter. It will be convenient to refer to these offences as “the Kress offences”. Robbery whilst armed with a dangerous weapon is an offence under s 97(2) of the Crimes Act for which the maximum penalty is imprisonment for twenty-five years.

4 The sentencing proceedings which have been conducted before me have been proceedings for the sentencing of the prisoner for both the Logozzo offences and the Kress offences.

5 As the sentencing judge I am required to determine the facts relevant to the sentencing of the prisoner for all of the offences. In performing that function I am to apply the principles stated by the Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374, which have been referred to with approval by the High Court in Olbrich v The Queen (1999) 199 CLR 270 at 280 (24) and Cheung v The Queen (2001) 209 CLR 1 at 12-14 (13-17). These principles include that any facts found by me for the purpose of sentencing the prisoner for an offence of which he was found guilty must be consistent with the verdict of the jury and that in sentencing the prisoner for any of the offences I cannot make a finding of fact adverse to the prisoner unless I have arrived at that finding beyond reasonable doubt.

6 I will firstly make findings of fact about the Logozzo offences. There was no dispute at the trial or in the proceedings on sentence about many of the facts of those offences. However, there were some disputed issues of fact which later in these remarks I will attempt to resolve. There was no dispute about the facts I am about to state.

7 Joseph Logozzo, his wife Marianne Logozzo and some of their adult children lived in a two storey house at 69 Feodore Drive, Cecil Hills. Shortly after midnight in the early morning of 7 January 2002 Mr and Mrs Logozzo returned to their home, after having been at a club. Mrs Logozzo parked the vehicle in which they had been travelling on the driveway near the front door of the house. Mr and Mrs Logozzo then walked towards the front door of the house.

8 As Mrs Logozzo was looking for the front door key among a big bunch of keys she had, she heard voices. She turned around and saw two men with guns in their hands. One of the men was armed with a rifle and the other man was armed with a pistol. The bodies of both of the men were completely covered by dark clothing and their faces were covered by balaclavas. Each man was wearing large goggles.

9 One of the two men said words to the effect, “do as we say and no one will get hurt”. He asked if there was anyone inside the house and Mrs Logozzo, seeking to protect her children who were inside the house, replied that there was only her husband and herself. Mr and Mrs Logozzo were told to go inside the house. Mrs Logozzo opened the front door and she and her husband entered the house. They were followed by the two men. All of Mr and Mrs Logozzo and the two intruders entered the lounge room of the house.

10 The man with the rifle walked towards a stairway leading to the second storey of the house. Mrs Logozzo then disclosed that two of her sons were asleep upstairs. She implored the men to tell her husband and herself what they wanted and that she and her husband would give the two men what they wanted. She added “just leave them (her children) alone”.

11 The man with the rifle walked some distance up the stairs and then came running back down the stairs. He expressed a fear that the persons upstairs were probably already telephoning the police. He then ran back up the stairs.

12 The man with the rifle entered a bedroom in which Mr and Mrs Logozzo’s son Robert Logozzo, then aged twenty-two, was asleep. The man with the rifle woke Robert Logozzo, telling him to get out of the bed and to get out of the bedroom. While speaking to Robert Logozzo he pointed the rifle at Robert Logozzo.

13 Robert Logozzo got out of bed and walked down the stairs to the lounge room. He was told by the other intruder to lie down on the floor and he lay down on the floor of the lounge room, face down.

14 The man with the rifle entered a bedroom in which Mr Logozzo’s son Julian Logozzo, then aged twenty-four, and his fiancée Natalie Curmi, now Natalie Logozzo, were asleep. The man with the rifle woke Julian Logozzo and Natalie Curmi. He told them to get out of the bed and to go downstairs. He pointed the rifle at Julian Logozzo and Natalie Curmi.

15 Julian Logozzo and Natalie Curmi went downstairs, followed by the man with the rifle and, as directed, lay face down on the floor of the lounge room behind Robert Logozzo.

16 The man with the rifle then said to Joseph Logozzo, “you, come with me and show me what you have got”. Joseph Logozzo and the man with the rifle started walking up the stairs. The act of pointing the rifle at Joseph Logozzo with intent to rob him constituted the offence charged in the second count in the indictment.

17 On the stairs a physical struggle occurred between the man with the rifle and Mr Logozzo. Both the man with the rifle and Mr Logozzo fell down the stairs, wrestling with each other. In falling Mr Logozzo struck a coffee table in the lounge room near the stairs.

18 The man armed with the pistol discharged the pistol. The projectile entered Mr Logozzo’s chest and passed through the wall of the chest and part of Mr Logozzo’s lung.

19 Mrs Logozzo ran towards her husband. The man with the pistol discharged the pistol a second time. The projectile struck Mrs Logozzo entering and then exiting the metacarpophalangeal joint of her right thumb. It was this firing of the pistol which constituted the offence charged in the third count in the indictment.

20 After the two shots had been fired both intruders ran out of the house. No property had been actually stolen.

21 Mr Logozzo was taken to Liverpool Hospital but was pronounced dead at 2.59 am on 7 January 2002.

22 It will be observed that so far, in making findings of fact about the Logozzo offences, I have referred to the intruders as “the man with the rifle” and “the man with the pistol”, without attempting to make a finding as to which of the intruders the prisoner was (by returning verdicts of guilty of the Logozzo offences the jury must necessarily have been satisfied beyond reasonable doubt that the prisoner was one of the two intruders). I will have to attempt to resolve this issue, but it is convenient to postpone this attempt until after I have made findings of fact about the Kress offences.

23 The facts of the Kress offences can be found very simply. During the trial the prisoner made extensive admissions pursuant to s 184 of the Evidence Act (exhibit 28), including admissions about the events of 17 January 2002, that is the events constituting the Kress offences. The prisoner made these admissions, after I had ruled that evidence about the Kress offences would be admissible in the trial of the Logozzo offences pursuant to Pt 3.6 of the Evidence Act. I make findings of fact about the Kress offences in accordance with these admissions.

24 The prisoner made the following admissions about the events of 17 January 2002.

“1. Late in the evening of 17 January 2002, Michael Kress and his wife Beverly Kress, with their daughter Alyson aged 17 years, their son Jonathon aged 16 years and Alyson’s boyfriend Ramzi Tamer were at their home at 134 Greenway Drive, West Hoxton.
2. At or about 11.30pm, Michael Kress opened his garage and stood at the open door smoking a cigarette. As he stood there, a white model Ford Laser stopped on the street directly opposite his driveway.
3. The Ford Laser sedan, registered number UKK-412, was previously stolen some time after 9.00pm on 16 January 2002 from Chertsey Avenue, Bankstown.
4. A man, carrying a pistol, ran up the driveway from the vehicle and said:

‘Get in quick, don’t shout, if you shout, I’ll shoot you’.

5. Two further men ran up behind the first.
6. Michael Kress described one of these men as holding an army style rifle and the other as holding a knife.
7. He describes all as dressed in dark clothing, balaclavas, and two were wearing ski goggles.
8. The three men forced Michael Kress into the garage and into his home by way of an internal doorway. As they did so, the man with the pistol placed the weapon against Michael Kress’s right temple and said:
‘Don’t look back. Don’t look at me. Don’t look at anybody’
9. Beverly Kress was standing at the internal door.
10. The man with the pistol said to her:
‘Go inside, be quiet and nobody will get hurt’.
11. Beverly Kress walked into the bar area of the house.
12. Once inside the house, in the bar area, the man with the pistol told Michael Kress to lie down on the tiled floor face first and to put his hands behind his back. Michael Kress did as he was told. Beverly Kress remained standing, and saw the other two men, one of whom was armed with a knife and the other with a rifle.
13. The man with the knife had black plastic ties in his hand and a light silver grey coloured sports bag with a centre zipper and two handles. The bag was square or rectangular and made of shiny material.
14. The man with the handgun asked Beverly Kress if there was anyone else in the house. She replied, ‘my children and my daughter’s boyfriend’. The man with the handgun told her to go up and get them.
15. Beverly Kress walked up the stairs followed by the man with the pistol and the man with the knife. The man with the rifle remained behind, guarding Michael Kress.
16. Beverly Kress went to her daughter Alyson’s bedroom and told her and her boyfriend Ramzi Tamer to come downstairs and do as they were told. Alyson Kress and Ramzi Tamer went to the downstairs bar area where they were made to lie face down on the floor.
17. Beverly Kress then went into the bathroom where her son Jonathon was having a shower and told him to come downstairs. The man with the pistol stood behind Beverly Kress with the gun pointed at her as she did this.
18. Beverly Kress returned downstairs.
19. Jonathon Kress dressed and was then forced downstairs to the same area. He was made to lie on the floor.
20. The man with the handgun asked, ‘where’s the money? If you do what we say, no one will get hurt’. Beverly Kress took money out of her bag and handed it to him He looked at the remaining items in the bag and discarded them. Beverly Kress was made to lie face down on the floor.
21. Everyone was told to remove their jewellery, and thereafter their hands were bound behind their backs using black plastic cable ties.
22. As this was happening, one of the men was searching the upstairs area of the house.
23. The men stole from this family mobile telephones, jewellery, a watch, wallets and their contents and bottles of spirits.
24. One of the men produced a roll of silver ducting tape. He cut numerous pieces off with a knife and stuck them to the stairs. Each of the occupants then had a piece of tape placed over their mouth.
25. The man with the handgun then told the victims to keep their heads on the ground for another ten minutes and not to call the police, otherwise they would come back and kill them. All three men then left the premises.
26. A short time later some of the victims were able to free themselves and raise the alarm.
27. On 18 January 2002 the 1984 white GL Ford Laser UKK-412 was recovered from where it had been abandoned on Old Cowpasture Road, West Hoxton”.

25 In giving evidence at the trial the prisoner gave some evidence about what he said were the circumstances in which he had participated in the Kress offences. He said that he had participated in the Kress offences, after travelling to the vicinity of the Kress home in a car with some friends, not knowing where he was going or what was going to happen, that he had got into the car in his underwear, that the clothing he had worn during the robberies had been provided to him in the car by his friends and that in the carrying out of the robberies he had merely done what he had been told to do by his friends. The prisoner was effectively cross-examined by the Crown Prosecutor on this evidence and I do not accept any of the evidence.

26 I will now return to the issues of fact about the Logozzo offences which I have not so far attempted to resolve.

27 At the trial the act which the Crown alleged had caused the death of Mr Logozzo was identified as being the act of firing the pistol so as to cause the fatal wound to Mr Logozzo.

28 At the trial the jury were directed that they could find the prisoner guilty of the murder of Mr Logozzo on any one of a number of bases, namely that it was the prisoner who had fired the pistol and that he had done so with the intent required for murder or that the prisoner was guilty of constructive murder (formerly known as felony murder), either on the basis that it was he who had fired the pistol (although not necessarily with the intent required for intentional murder) or that one or other of the prisoner and the other offender had fired the pistol, and that in either case the other conditions for finding the prisoner guilty of constructive murder were satisfied.

29 Similarly, the jury were directed that they could find the prisoner guilty on the other counts in the indictment in accordance with principles of joint criminal enterprise and common purpose, without necessarily having to be satisfied that it was the prisoner, and not the other offender, who had pointed the rifle at Mr Logozzo or who had fired the shot which struck Mrs Logozzo.

30 Accordingly, the jury’s verdicts of guilty necessarily determine that the prisoner was one of the two offenders who entered the Logozzo’s house on 7 January 2002 but do not determine whether the prisoner was the man armed with the rifle or was the man armed with the pistol who fired the two shots.

31 In the proceedings on sentence it was submitted by the Crown, and disputed by counsel for the prisoner, that I should find to the requisite standard, that is beyond reasonable doubt, that it was the prisoner who was the man with the pistol and that, accordingly, it was the prisoner who had fired the two shots, one killing Mr Logozzo and the other injuring Mrs Logozzo. At the trial there was no evidence by any witness identifying the prisoner as being either of the two offenders. It is not surprising that none of the occupants of the house on 7 January 2002 could give any such identification evidence. As I stated earlier in these remarks, the bodies of the two offenders were completely covered by dark clothing, their faces were covered by balaclavas and their eyes were covered by large goggles.

32 In the proceedings on sentence the Crown sought to establish that the prisoner was the man with the pistol by an argument consisting of a number of steps. These steps were that I should find:-

(i) that the offender other than the prisoner was a young man named Mao Van.

(ii) that Mao Van was substantially taller than the prisoner.

(iii) that the man armed with the pistol on the night of 7 January 2002 was the shorter of the two intruders and was, therefore, the prisoner.

33 The second step in the Crown’s argument can readily be accepted. On 20 May 2002 the prisoner, after being arrested, was photographed by a police officer against a scale from which his height could be determined and his height was determined as being approximately 170 centimetres. On 29 July 2002 Mao Van was photographed by a police officer against the scale and Mao Van’s height was determined as being between 178 and 180 centimetres.

34 The first step in the Crown’s argument presents greater difficulties.

35 I accept that there was evidence at the trial that the prisoner and Mao Van were close associates and there could be no dispute that Mao Van, as well as the prisoner, was one of the offenders in the Kress offences. Exhibit 28 at the trial includes admissions that on 16 February 2002, when police executed a search warrant at 26 Parker Street Canley Vale, Mao Van and the prisoner were each occupying a bedroom at the premises (exhibit 28 par 61), that in the bedroom occupied by Mao Van police found the watch which had been stolen from Alyson Kress on 17 January 2002, that in the same bedroom police located a pair of black cargo pants (exhibit 28 par 62) and that in a spare room at the premises police located the fishing licence which had been stolen from Mr Kress on 17 January 2002 in a suitcase labelled with Mao Van’s name and the address of his mother (exhibit 28 par 64). It was further admitted that the mobile phones which had been stolen from Alyson Kress and Ramzi Tamer on 17 January 2002 had been traced to Mao Van.

36 In support of this first step in its argument the Crown relied on the admission made in par 67 of exhibit 28 that Mao Van was the owner as of 8 February 2002 of an SKS rifle, on evidence that an SKS rifle is similar in appearance to an AK 47 rifle and on evidence that one of the occupants of the Logozzo home had selected an AK 47 rifle as being similar in appearance to the rifle he had seen one of the offenders carrying on 7 January 2002.

37 However, there are difficulties in the way of finding beyond reasonable doubt that the other offender in the Logozzo offences was Mao Van. While Mao Van was an offender in the Kress offences, there was a third offender in the Kress offences, who might have been the other offender in the Logozzo offences. Mao Van has been in custody since 2002; yet, he has apparently not been charged with any of the Logozzo offences. When he was questioned by police on 15 May 2002, the prisoner denied that Mao Van had been involved in the commission of the Logozzo offences.

38 I have concluded that I could not be satisfied beyond reasonable doubt that the other offender in the Logozzo offences was Mao Van.

39 As regards the third step in the Crown’s argument, the Crown relied on evidence given by Mrs Logozzo in her evidence in chief that the man with the pistol was much shorter and was stockier than the man with the rifle and that the man with the rifle was about six inches taller and was slimmer than the man with the pistol.

40 Mrs Logozzo said in her evidence in chief that when she first saw the two men outside the house, they were standing on the grass, level with each other, and she was then able to observe that the man with the handgun was shorter and stockier. She said that the two men were then no more than about a metre away from her.

41 I do not doubt that in her evidence at the trial Mrs Logozzo was conscientiously endeavouring to give a truthful and accurate account. However, there are some difficulties with this part of her evidence.

42 It was elicited in cross-examination of Mrs Logozzo that shortly after 7 January 2002 she had told a police officer investigating the offences that when she first saw the offenders they were standing, not on the grass, but on the paving and that the two men were “a fair distance from me”.

43 In a statement she gave to police on 12 January 2002 Mrs Logozzo had not given any description of the build of either of the offenders and before giving her evidence at the trial about the build of the prisoner she had had the opportunity of observing him, even if he was then sitting down. That the prisoner had a stocky build is readily observable, even when he is sitting down.

44 Mrs Logozzo’s evidence that the man with the pistol was the shorter of the two men was contradicted by the evidence of Robert Logozzo. Robert Logozzo, who gave evidence that his own height was about six foot one inch (about 185 centimetres) gave evidence that the man with the rifle was shorter than himself, no taller than 175 centimetres, whereas the other man (that is the man with the pistol) seemed taller than the man with the rifle by about five to eight centimetres. Later in his evidence Robert Logozzo said that the man with the pistol was “slightly” taller and that “I wouldn’t say he was a much bigger build than the first person”.

45 Parts of the evidence of Julian Logozzo might lend some support to Mrs Logozzo’s evidence. Julian Logozzo gave evidence that he himself was five foot eleven inches (approximately 180 centimetres) in height, that the man with the rifle was smaller, but not much smaller, than Julian Logozzo, about five foot nine inches or five foot ten inches, and that the man with the pistol was a little bit smaller in height than the man with the rifle and was of medium build, whereas the man with the rifle was thinner.

46 However, Julian Logozzo had formed his opinion about the height of the man with the pistol, while he himself was lying on the floor. After 7 January he had endeavoured to assess the height of the man with the rifle by marking what he thought was the man’s height on a doorway and that height had been determined to be five foot eight inches or five foot nine inches. On 7 January 2002 Julian Logozzo had told police that the man with the pistol was five foot eight inches or five foot nine inches in height.

47 Natalie Curmi gave no evidence about the comparative heights of the two men. She had had no more than a glimpse of the man with the pistol.

48 I have reached the conclusion that, in the state of the evidence, I could not be satisfied beyond reasonable doubt that the man with the pistol was shorter than the man with the rifle.

49 As I have not been satisfied beyond reasonable doubt that I should find either step one or step three in the Crown’s argument, I am not satisfied beyond reasonable doubt that it was the prisoner who was the man with the pistol and who fired the two shots with the pistol.

50 A further issue of fact which was raised in the proceedings on sentence was, if it was the prisoner who had fired the shot which killed Mr Logozzo, whether I should be satisfied beyond reasonable doubt that the prisoner had fired the shot with the intent to kill Mr Logozzo or at least with the intent to inflict really serious bodily injury on him. As I am not satisfied beyond reasonable doubt that it was the prisoner who fired the shot, this issue about the intention of the shooter does not really arise. However, I will endeavour to resolve the issue.

51 On this issue the Crown relied heavily on evidence given by Robert Logozzo in evidence in chief at p 96 of the trial transcript, in which Robert Logozzo said that “he (the man with the pistol) had his arms stretched out, holding the pistol with both hands”.

52 Robert Logozzo was asked by the Crown Prosecutor to demonstrate how the man had been holding the pistol. Robert Logozzo complied and agreed with the following description given by the Crown Prosecutor of what he had demonstrated – “he was standing erect, both arms are extending forward, both arms are together, with your fingers interlaced, pointing slightly below shoulder height”.

53 It was submitted by the Crown that I should accept this evidence by Robert Logozzo and, on the basis of this evidence, find that the person holding the pistol had an intention to shoot Mr Logozzo, which would necessarily have been an intention to kill him or at least an intention to inflict really serious bodily injury.

54 I note that the Crown made the submission that I should accept this part of Robert Logozzo’s evidence, while submitting that I should reject the same witness’s evidence about the comparative heights of the man with the rifle and the man with the pistol.

55 The position taken by the Crown in both written and oral submissions in the proceedings on sentence was that the shot which killed Mr Logozzo was the first shot fired and that the shot which injured Mrs Logozzo was fired subsequently. This view of the sequence of the two shots is supported by the evidence and is the sequence which I have stated earlier in these remarks.

56 According to Robert Logozzo’s evidence, he did not see the first shot fired. He gave evidence that he was lying on the floor of the lounge room face down, when he heard what he thought was a scuffle; he then heard a bang, which at the time he did not think was loud enough to be a gun shot (but which apparently was a gun shot) and he then heard a further noise, which he described as a “big thud” and it was only then that he looked up and saw the man with the pistol. Accordingly, even if Robert Logozzo’s evidence is accepted, it is evidence about the stance of the shooter at some time after the fatal shot had been fired.

57 In her evidence Mrs Logozzo said that she saw a flash come from the handgun but she did not give any evidence about the stance of the man with the pistol at the time she saw the flash. When asked where her husband was at the time she saw the flash, she gave somewhat conflicting evidence. She said, “he was standing in front of the closet, his body was lying on the closet, on top of the coffee table, so he was in that vicinity there” and “the man with the rifle was struggling with Joe at the time”.

58 At the time the fatal shot was fired events were happening quickly in the lounge room of the house and there had been a struggle, and there might have been a continuing struggle, between Mr Logozzo and the man with the rifle. The Crown did not allege that the second shot, which struck Mrs Logozzo, was fired with any intent to injure her.

59 I do not consider that I could be satisfied beyond reasonable doubt, on the basis of Robert Logozzo’s evidence, that whoever fired the shot which killed Mr Logozzo did so with the intent required for intentional murder.

60 I have concluded that I am not satisfied beyond reasonable doubt that it was the prisoner who fired the shot which killed Mr Logozzo and that the prisoner is to be sentenced for the crime of murder on the basis that he is guilty of constructive murder and that the Crown has not established that it was he who fired the fatal shot. However, even on this basis the crime of murder of which the prisoner is guilty was a very serious offence. The prisoner in company with another person entered the home of Mr and Mrs Logozzo late at night, intending to rob the occupants of the home. Each of the offenders was disguised by black clothing, a balaclava and large goggles and would have presented a terrifying appearance to the occupants of the house. The robbery which the offenders intended to commit was obviously a planned robbery. Each of the two offenders was armed with a firearm and at least one of the firearms was loaded. There was a serious risk that one of the firearms might be discharged in the course of committing or attempting to commit the planned robbery. In the course of attempting to commit the robbery one of the firearms was discharged and Mr Logozzo was fatally shot.

61 In the proceedings on sentence I received victim impact statements from Mrs Logozzo, Natalie Logozzo (formerly Natalie Curmi) and Michael Kress. I have considered all of these victim impact statements. In her victim impact statement Mrs Logozzo described her married life of approximately thirty years with Mr Logozzo and the severity of the impact on her of the loss of her husband.

62 The five offences of armed robbery with a dangerous weapon committed on 17 January 2002, that is the Kress offences, were very serious examples of armed robbery. A number of the aggravating factors referred to in s 21A(2) of the Crimes (Sentencing Procedure) Act were present. The offences were committed in company (s 21A(2)(e)), the offences, taken collectively, involved multiple victims and a series of criminal acts (s 21A(2)(m)) and the offences were part of a planned or organised criminal activity (s 21A(2)(n)).

63 Other matters increasing the objective seriousness of the offences were that there were as many as three offenders; all of the offenders were armed, two with firearms and one with a knife; the offenders were disguised; the offenders were disguised in such a way as to present a terrifying appearance; the offenders entered the victims’ home late at night; the victims were not merely robbed but were deprived of their liberty, being compelled at gunpoint to lie on the floor and having their hands tied behind their backs with cable ties and having their mouths covered with duct tape. A particular circumstance of aggravation is that the prisoner participated in the Kress offences committed on 17 January 2002, notwithstanding that he knew that in the commission of the Logozzo offences on 7 January 2002 Mr Logozzo had been shot and killed.

64 I turn to the subjective circumstances of the prisoner.

65 As I have already mentioned, the prisoner gave evidence at the trial. He did not, however, give evidence in the proceedings on sentence. A report dated 13 December 2004 by Mr Peter Champion, a clinical psychologist, who had interviewed and tested the prisoner on 12 December 2004, was tendered by counsel for the prisoner and is the main source of such information as is before me about the prisoner’s subjective circumstances.

66 The prisoner was born in South East Asia of Cambodian parents on 2 June 1982. He was accordingly nineteen years old at the time of committing these offences.

67 The prisoner came to Australia with his family, when he was three years old. In Australia he attended school until year 12. His parents separated when he was sixteen years old.

68 The prisoner has a criminal history but it consists also entirely of driving offences, such as driving with a low range prescribed concentration of alcohol and driving while his licence was suspended or while he was disqualified from driving.

69 In his report Mr Champion said at par 32:-

“Mr Sophear Em is a 22 year old man of Cambodian descent who has been in custody since mid 2002, awaiting trial, and subsequently awaiting sentence. There is a history of polysubstance abuse, with alcohol abuse being the most significant feature at or about the time of the offence/s. There is a history of familial dysfunction, contributing to a decline in his social and educational adjustment and to the changes in his pattern of substance abuse. There are indications of periods of mood disorder and perhaps also some anxiety disorder features.”

70 At par 31 of his report Mr Champion said that it was extremely difficult to talk about prognosis and future dangerousness, “when the individual denies any culpability or indeed any involvement in the primary offence (murder)”. I do not consider that, on the limited evidence before me, I am able to make any finding about the prisoner’s prospects of rehabilitation. I am unable to make any finding in favour of the prisoner that he has good prospects of rehabilitation or that he is unlikely to re-offend.

71 Most of the submissions of the parties in the proceedings on sentence were devoted to the disputed issues of fact about the murder of Mr Logozzo which I have already dealt with, namely whether I could find beyond reasonable doubt that the prisoner was the person who shot Mr Logozzo and whether I could find beyond reasonable doubt that, if it was the prisoner who shot Mr Logozzo, the prisoner had the intent required for intentional murder.

72 The Crown submitted that I could properly impose a life sentence for the murder, without submitting that I would be required to do so and would be in error if I did not impose a life sentence. The Crown submission that I could properly impose a life sentence for murder was dependent on my accepting the Crown’s submissions on the disputed issues of fact about the murder and I have decided that I should not accept those submissions. The Crown submitted that, even if it did not succeed on the disputed issues of fact, the offence the prisoner had committed was a very serious offence and called for a long determinate sentence. The Crown referred to R v Mills (unreported NSWCCA 3 April 1995) in which the Court of Criminal Appeal held that an offence of constructive or felony 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. See also R v Jacobs and Mehajer [2004] NSWCCA 462 especially at (332) per Wood CJ at CL.

73 The Crown submitted that the sentences for the Kress offences should be towards the upper end of sentences for armed robbery with a dangerous weapon and that, if I imposed a determinate sentence for the murder, there should be an accumulation of the sentences for the Logozzo offences and the sentences for the Kress offences.

74 Counsel for the prisoner in the proceedings on sentence, apart from making submissions on the disputed issues of fact about the murder of Mr Logozzo, submitted that in sentencing the prisoner I should take into account his youth and immaturity at the time of committing the offences and his lack of any relevant criminal history and that, in sentencing the prisoner for the Kress offences, I should take into account the prisoner’s pleas of guilty. On the subject of the prisoner’s youth and immaturity counsel referred to R v Hearne (2001) 124 A Crim R 451 especially at pars 25-28. It was submitted that I should find special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act.

75 It was not in dispute in the proceedings on sentence that the prisoner had continuously been in custody since 20 May 2002, that the five sentences for the Kress offences could be made fully concurrent with each other but the length of the sentences could reflect that there were five victims (without the need to make the five individual sentences partly cumulative on each other), that the sentences for at least the first two of the Logozzo offences should commence from the same date and that, if I imposed a determinate sentence for the offence of murder, there should be at least some accumulation of the sentences for the Kress offences and the sentences for the Logozzo offences.

76 In sentencing the prisoner I take into account the provisions of s 3A and s 21A and other relevant provisions of the Crimes (Sentencing Procedure) Act. I take into account the objective facts of the offences and the subjective features of the prisoner, which I have already described. As I am sentencing the prisoner for multiple offences, I have regard to the principle of totality in sentencing and questions of whether and to what extent sentences should be made concurrent or cumulative.

77 I do not consider that I should take the extreme course of imposing a life sentence for the murder of Mr Logozzo. The prisoner is being sentenced for a single murder only. I have not found that I am satisfied to the requisite standard that it was the prisoner who fired the shot which killed Mr Logozzo. The prisoner is being sentenced on the basis that he is guilty of constructive murder. Even if I had been satisfied beyond reasonable doubt that it was the prisoner who fired the fatal shot, the act of firing the fatal shot was clearly unpremeditated (although the prisoner realised that there was a serious risk that one of the firearms might be discharged). I also take into account that the prisoner was only nineteen years old at the time of the murder and was to some degree immature and that he had no relevant criminal history. Although I have decided that a life sentence should not be imposed, the crime of murder committed by the prisoner remains a serious offence of murder.

78 The Kress offences were, in my opinion, much worse offences than the kind of armed robbery offence described in par 162 of the Chief Justice’s judgment in the guidelines decision of R v Henry (1999) 46 NSWLR 346 at 380 (162) for which the Chief Justice said a total sentence of imprisonment for four to five years should generally be imposed. In the present offences there was not a limited degree, but a high degree, of planning. As I have noted earlier in these remarks there were many circumstances of aggravation. In my opinion, the objective criminality of the Kress offences was considerably above the mid-range for offences of robbery whilst armed with a dangerous weapon. As was agreed by counsel in the proceedings on sentence, I will make the sentences for the five Kress offences fully concurrent with each other. However, the fact that there were five victims will result in a more severe penalty than if there had been merely one victim.

79 The prisoner pleaded guilty to the Kress offences. However, the pleas of guilty were late and I will allow a discount of not more than about 10 per cent for the pleas of guilty. I do not consider that the prisoner has shown any contrition for the Kress offences.

80 I do not consider that I should find that there are any special circumstances within s 44 (2) of the Crimes (Sentencing Procedure) Act, otherwise than in the accumulation of sentences. Under the sentences I am about to impose there will be quite a lengthy period during which the prisoner will be eligible for release on parole, which will be equal to one quarter of the total sentences.

81 I propose to make the sentence for the offence committed against Mrs Logozzo, which will be the shortest of the sentences, the first to commence of the sentences. The sentence for this offence should impose some separate effective punishment on the prisoner, because the victim of the offence is a different person from the victim of the first two of the Logozzo offences. The offence of discharging a loaded firearm in the lounge room of a house with disregard for the safety of a person in the lounge room was a serious offence, even if the Crown did not allege that there was any intention to injure anyone. The sentence for this offence will be a fixed term of imprisonment, because if I were to impose a sentence containing a period during which the prisoner would be eligible for release on parole, that parole period would be subsumed in the non-parole periods of subsequent sentences. The fixed term will be equivalent to what would have been the non-parole period, if I had imposed a sentence containing a non-parole period and a parole period.

82 I propose to make the sentences for the Kress offences the next to commence of the sentences. I will impose fixed terms of imprisonment, because, if I were to impose sentences containing a period during which the prisoner would be eligible for release on parole, that parole period would be subsumed in the non-parole period of subsequent sentences. The fixed terms will be equivalent to what would have been the non-parole periods, if I had imposed sentences containing non-parole periods and parole periods. The sentences for these offences will be partly cumulative on the sentence for the offence committed against Mrs Logozzo.

83 The sentences for the first two of the Logozzo offences will commence from the same date and will be partly cumulative on the sentences for the Kress offences. The sentence for the offence charged in the second count in the indictment will, for reasons similar to those I have already given concerning the other sentences, be a fixed term of imprisonment. In sentencing the prisoner for the offence of murder I will impose a sentence containing a non-parole period and a parole period, such that the parole period will be one quarter of the total period of the sentences imposed on him.

84 Sophear Em for the offence of firing a firearm with disregard for the safety of Marianne Logozzo I sentence you to a fixed term of imprisonment of two years commencing on 20 May 2002 and expiring on 19 May 2004.

85 For each of the offences of robbery whilst armed with a dangerous weapon committed on 17 January 2002 I sentence you to a fixed term of imprisonment of twelve years commencing on 20 May 2003 and expiring on 19 May 2015. The five sentences to be served concurrently with each other.

86 For the offence of assaulting Joseph Logozzo with intent to rob him whilst armed with a dangerous weapon I sentence you to a fixed term of imprisonment of ten years commencing on 20 May 2013 and expiring on 19 May 2023.

87 For the offence of murdering Joseph Logozzo I sentence you to a term of imprisonment of twenty-five years commencing on 20 May 2013 and expiring on 19 May 2038 with a non-parole period of sixteen years commencing on 20 May 2013 and expiring on 19 May 2029.

88 The earliest day on which you will be eligible for release on parole will be 19 May 2029.

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