R v Gatt (No 11)

[2018] NSWSC 991

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Gatt (No 11) [2018] NSWSC 991

Hearing dates:

13 June 2018

Date of orders:

29 June 2018

Decision date:

29 June 2018

Jurisdiction:

Common Law - Criminal

Before:

Schmidt J

Decision:

Joseph Gatt is convicted of the murder of Bassil Hijazi.

 

Sentenced to a non-parole period of 21 years, commencing on 1 February 2019 and expiring on 31 January 2040.

 Balance of term of 7 years will expire on 31 January 2047.

Catchwords:

CRIMINAL LAW – sentence – murder – joint criminal enterprise resulting in execution– factual basis on which offender must be sentenced given alternative cases which the Crown advanced – objective seriousness of offence – offender’s moral culpability – how principles of parity and totality to be applied – victim impact statements – no discount

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Dodd (1991) 57 A Crim R 349
R v Joseph Gatt (District Court (NSW), Yehia DCJ, 10 July 2015, unrep)
R v Lewis [2001] NSWCCA 448
R v KM [2004] NSWCCA 65
R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253
R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Scott [2005] NSWCCA 152
R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Sentence

Parties:

Regina (Crown)
Joseph Gatt (Offender)

Representation:

Counsel:
Mr A Robertson (Crown)
Mr P Boulten SC (Offender)

  Solicitors:
Solicitor for Public Prosecutions (Crown)
The Law Practice (Offender)

File Number(s):

2014/186944

Publication restriction:

Nil

Judgment

1. On 1 May 2018, after a defended jury trial, Mr Gatt was convicted of having murdered 18 year old Bassil Hijazi on 29 July 2013. He was then in the company of his co-offender, George Borg, at a car park at Bexley, where Mr Hijazi was sitting in the back seat of a car, from which he fled after being shot twice before collapsing and dying in a nearby road. Mr Gatt now stands for sentence for his offence.

2. Before turning to what is in issue between the parties as to Mr Gatt’s sentence, the Court’s sentencing task should shortly be explained.

The Court’s task on sentencing

3. In arriving at Mr Gatt’s sentence, the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) must be borne in mind. They are:

“(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.”

4. Mr Gatt’s sentence must be determined having regard to the maximum penalty imposed for the offence of murder, namely life imprisonment. That sentence is, however, reserved for extreme offences of murder. Section 61(1) of the Crimes (Sentencing Procedure) Act thus requires that a sentence of life imprisonment only be imposed, if the Court is satisfied that an offender’s level of culpability in the commission of the murder is so extreme, that the community’s interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence.

5. It is for the Crown to establish that an offence falls within s 61(1). It did not seek to do so in Mr Gatt’s case. On the evidence I will discuss, I am satisfied that the parties’ common position, that Mr Gatt’s offence does not warrant the imposition of the maximum sentence, notwithstanding its obvious seriousness, must be accepted.

6. The Parliament has also imposed a standard non-parole period of 20 years imprisonment for an offence of murder, which falls in the middle of the range of objective seriousness of such offences: s 54A(2) and Pt 4, Div 1A table of the Crimes (Sentencing Procedure) Act. Such a non-parole period is the minimum period that an offender must serve in prison, before being eligible to be released on parole for the balance of the sentence imposed.

7. In accordance with s 54A of the Crimes (Sentencing Procedure) Act, the seriousness of Mr Gatt’s offence must be assessed by taking into account only the objective factors established on the evidence affecting its relative seriousness. The objective seriousness of Mr Gatt’s offence is in issue between the parties.

8. Both the maximum penalty and the standard non-parole period are factors which must be taken into account on sentencing, together with other relevant matters, in the way discussed by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and as is provided in s 54B of the Crimes (Sentencing Procedure) Act.

9. Mr Gatt’s moral culpability for his offence must also be taken into account, in the way discussed by the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38.

10. On sentencing the Court must also consider the identified aggravating and mitigating factors specified in s 21A of the Crimes (Sentencing Procedure) Act revealed by the evidence. Under s 21A, any other objective or subjective factors revealed by the evidence, which affect the relative seriousness of Mr Gatt’s offence, must also be taken into account.

11. Questions of general and specific deterrence must also be considered, together with the principle of parity, which requires that account be taken of the sentence imposed on Mr Gatt’s co-offender Mr Borg, in order that unjustifiable disparity between the sentences imposed upon offenders involved in the same criminal conduct be avoided, as the High Court explained in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49.

12. Because Mr Gatt is already serving a sentence for other offences which he committed in 2013, which were dealt with by Yehia DCJ in July 2015 (R v Joseph Gatt (District Court (NSW), Yehia DCJ, 10 July 2015, unrep)), the totality principle must also be applied when he is sentenced, in the way discussed by the High Court in Mill v The Queen (1988) 166 CLR 59 at 66; [1988] HCA 70. Those offences were:

1. One offence under s 25(2) of the Drug Misuse and Trafficking Act1985 (NSW) of supplying not less than a commercial quantity, 713 grams of MDMA, taking into account other offences dealt with on a Form 1;

2. Three offences of possessing an unauthorised firearm under s 7(1) of the Firearms Act1996 (NSW); and

3. One offence of knowingly dealing with the proceeds of crime, $160,000, under s 193B(2) of the Crimes Act 1900 (NSW).

13. The principles of parity and totality are related and must be applied in the way discussed in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.

14. Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. That requires that all of the factors relevant in Mr Gatt’s case be considered, their significance discussed and a value judgment as to the appropriate sentence for Mr Gatt’s offence made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon Mr Gatt and the circumstances of the crime he committed: R v Scott [2005] NSWCCA 152 at [15].

15. Regard must also be paid to s 44(2) of the Crimes (Sentencing Procedure) Act, which requires that the balance of the term of the sentence imposed on Mr Gatt must not exceed one-third of the non-parole period imposed upon him, unless it is found that there are special circumstances which warrant a departure from that ratio, in his case.

16. If there is to be any such adjustment, it must not be such as to reduce his non-parole period below the minimum term which justice requires Mr Gatt to serve, for the offence he committed as held by the High Court in Power v The Queen (1974) 131 CLR 623 at 628 – 629; [1974] HCA 26.

17. In this case, it is also necessary to mention the effect of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious violence offences”, which under s 5A, includes the offence of murder of which Mr Gatt has been convicted as the result of the jury’s verdict.

18. The effect of this Act is that the State may later apply to the Supreme Court for an order that the offender continue to receive supervision or remain in detention, at the end of the sentence. If the Court is then satisfied, to a high degree of probability, that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision, it may make an order under s 5B for the offender’s extended supervision. An order for continuing detention may be made under s 5C, if the Court is then satisfied that adequate supervision will not be provided for the offender by an extended supervision order.

The issues

19. In this case the issues lying between the parties were limited. They included:

1. The facts on which Mr Gatt is to be sentenced, given the alternate ways in which the Crown advanced its case at trial, namely, that it was Mr Gatt who fired the fatal shots, or that he was at least involved in the murder on the basis of joint criminal enterprise;

2. The objective seriousness of Mr Gatt’s offence;

3. Mr Gatt’s moral culpability for his offending; and

4. How the principles of parity and totality should be applied to Mr Gatt’s sentence.

The circumstances of the murder which were not in dispute on sentence

20. There is no issue that the jury concluded that the evidence established, beyond reasonable doubt, that Mr Gatt was involved in the murder, at least on the basis of joint criminal enterprise. The evidence included that:

1. In 2013 Mr Gatt and Mr Borg were involved together in a drug dealing business.

2. On 29 July they drove to Bexley, after they left the home of friends, the Nanouh brothers, at Hurstville, in a Corolla which one of the Nanouh brothers had earlier hired and which Mr Gatt and Mr Borg were using to supply drugs to their customers.

3. Mr Gatt and Mr Borg parked the car in Albyn Street Bexley and walked together to the nearby car park, before returning to the car, which was then driven into the car park.

4. Mr Gatt and Mr Borg there both approached John Terepo's car, where Mr Hijazi was sitting in the back and Mr Terepo and his brother in the front;

5. The murder weapon, which was later disposed of, was then fired seven times at the car, with two of the shots hitting Mr Hijazi in the neck and chest, causing his death and others hitting parts of the car and a nearby vehicle;

6. Mr Gatt and Mr Borg then left together in the Corolla and drove to Mr Gatt’s apartment at Wolli Creek, where they showered and changed and where Mr Borg then stayed with Mr Gatt for some weeks.

7. Mr Gatt was arrested there in November 2013 and charged with the offences to which he pleaded guilty and was sentenced by Yehia DCJ, after receiving a 25% discount.

8. Mr Borg was charged with Bassil Hijazi’s murder in March 2014 and Mr Gatt in June 2014.

9. Mr Borg later admitted his involvement in the murder, with the result that he was convicted and sentenced for his offence, receiving a combined discount of 40% for his plea and his assistance, 15% of which was for the future assistance involved in him giving evidence at Mr Gatt’s trial, on a sentence which commenced at 27 years imprisonment: R v Borg [2017] NSWSC 746.

21. There is no issue that the jury did not accept Mr Gatt’s evidence that while present when Mr Hijazi was shot, he had not been involved in his murder and that the shots were only fired after he saw a gun pointed at him and Mr Borg from the car in which Mr Hijazi was sitting, while he sheltered behind Mr Borg.

The parties’ cases on sentence

The Crown

22. The Crown’s case was that Mr Gatt would be sentenced on the basis that the evidence had proven beyond reasonable doubt that it was he who had fired the fatal shots. This was in issue.

23. But whether Mr Gatt was sentenced on that basis, or on the basis of joint criminal enterprise, the Crown contended that it would be concluded that his offence was not only above the mid-range of seriousness of such offending, but that the evidence established that his offence was more serious than that for which Mr Borg had been sentenced. That was because evidence led in this case had proven beyond reasonable doubt that the shots which killed Mr Hijazi had been fired with intent to kill, Mr Gatt having had a motive to kill him and the jury having rejected Mr Gatt’s evidence on significant issues as to self-defence and his involvement in the joint criminal enterprise.

24. This was also in issue.

25. The Crown did not contend that the evidence established that the murder had been planned from the time shots were earlier fired at Mr Gatt’s van at Lakemba on 8 June, despite the motive which that had provided him. Rather, that it was on 29 July 2013, when he learned that Mr Hijazi was nearby, that he planned to murder him and that at the latest, that intention was formed when he was some metres away from Mr Hijazi, at the car park.

26. Even if it was concluded that the murderous intent was formed only shortly before the murder was carried out, that Mr Gatt’s offence was more serious than that of Mr Borg was established by the evidence that it was an execution carried out in public, in the context of other criminal activity, namely drug supply, while using a firearm which was lethal in the sense that it was a self-loading pistol, possession of which was prohibited. Further, that it was committed in circumstances not established in the same way in Mr Borg’s case, the execution having been carried out in a manner which posed a grave risk to the lives of the Terepo brothers, who were also sitting in the car with Mr Hijazi and those of at least two other people standing nearby.

27. This was also in issue.

28. Aggravating matters were identified to include that the murder was committed in company, with Mr Borg also brandishing a firearm and Mr Gatt’s prior record of serious offending, he being on conditional liberty at the time of the murder.

29. As to the application of the totality principle the Crown’s case was that account would be taken of favourable findings made by Yehia DCJ, on evidence led on sentence in those proceedings, which would not have been available, had the evidence Mr Gatt gave at this trial then been given. This, too, was in issue.

Mr Gatt

30. Mr Gatt’s case was that he could not be sentenced on the basis that it was he who had fired the fatal shots, despite the jury’s verdict, because that conclusion rested on the evidence of Mr Borg, whose evidence did not provide a sound basis for the conclusion that this had been proven beyond reasonable doubt, despite the circumstantial case which the Crown had advanced. Nor did that case establish that his van had been shot at on 8 June, or that he had fired or obtained the murder weapon on 9 June.

31. It was urged that it would be concluded that Mr Gatt had to be sentenced on the basis of his involvement in the joint criminal enterprise with Mr Borg and that the evidence established that the nature and seriousness of his offence, was similar to that found in Mr Borg’s case.

32. Further, that while it was accepted that Mr Gatt’s offence was a serious example of murder, involving as it had the discharge of multiple shots from an illegally possessed pistol in the background of criminal activity extending to violence and violent retributions, it would be concluded that the relevant intention was formed only shortly before the fatal shots were fired; that there had been no significant planning and that it had not established that he had had any prior connection with the murder weapon.

33. As to totality, it was contended that Mr Gatt’s sentence would commence before the expiry of the non-parole period imposed upon him by Yehia DCJ, given the connection between those offences and the murder.

The seriousness of Mr Gatt’s offence

34. The sentence imposed on Mr Gatt must reflect the gravity of his offence, viewed objectively, in light of all of the evidence, in the way discussed in R v Dodd (1991) 57 A Crim R 349 at 354.

35. The view of the facts which I take must be consistent with the verdict of the jury, but there is no requirement that Mr Gatt must be sentenced on the basis of a view of the facts which is most favourable to him. Disputes about factual findings must be resolved in the way discussed in R v Olbrich (1999) 199 CLR 270 at 281; [1999] HCA 54 and more recently, in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] - [66]. That is, facts may not be taken into account adversely to Mr Gatt, unless they have been established on the evidence beyond reasonable doubt. However, circumstances taken into account in his favour, need only be proved on the balance of probabilities.

The evidence does not establish that Mr Gatt fired the fatal shots

36. As I have explained, given the jury’s verdict, while there is no issue that the evidence established Mr Gatt’s involvement in the murder on the basis of joint criminal enterprise, that Mr Borg’s evidence, even as supported by the other evidence, was a reliable basis for reaching the conclusion that it was Mr Gatt who fired the fatal shots, was in issue.

37. I am satisfied that this issue cannot be resolved in the way for which the Crown contended.

38. While Mr Borg’s evidence that both he and Mr Gatt were armed and had pointed their guns at the car where Mr Hijazi was sitting, was supported by Mr Terepo’s evidence, his evidence that it was Mr Gatt who fired the fatal shots was not. Other parts of the Crown’s circumstantial case, and even parts of Mr Gatt’s evidence corroborated aspects of Mr Borg’s evidence, but his was the only direct evidence which supported the conclusion that it was Mr Gatt who had fired the fatal shots.

39. Mr Gatt’s evidence was that he was present when Mr Hijazi was murdered, but that it was Mr Borg who fired those shots; that he and Mr Borg had not gone to Bexley to find Mr Hijazi, but to deal drugs there; they had not learned that he was at the car park there, while they were at the Nanouh brothers house; that they had not walked to the car park to look for Mr Hijazi, but rather to look for a customer; that they had not driven into the car park, to shoot Mr Hijazi; that he had not then been armed, but only Mr Borg had been; that the shots which killed Mr Hijazi were fired by Mr Borg after a gun had been pointed at them by someone in the car; that he had then sheltered behind Mr Borg; and that after they had fled the scene, he had berated Mr Borg for having carried a gun, because that had been contrary to their earlier agreement, that they would not carry guns while dealing drugs.

40. If the jury had accepted this evidence, Mr Gatt would have been acquitted. It was the jury’s assessment of all of the other evidence which led to Mr Gatt’s conviction. While that reflects that much of Mr Gatt’s evidence was not accepted, it does not establish that the jury accepted Mr Borg’s evidence that it was Mr Gatt who was the shooter.

41. The difficulty with concluding that Mr Borg’s evidence established beyond reasonable doubt that it was Mr Gatt, not he, who had fired the fatal shots, was not only what Mr Borg had to gain from giving that account, which has to be considered in light of his explanation that he had earlier advanced his untrue versions of how Mr Hijazi had come to be killed to police, because he could not initially accept that he was guilty of murder, when he had not fired the fatal shots, and so sought to be sentenced for some lesser offence. Also necessary to take into account is what other parts of Mr Borg’s evidence revealed about his involvement with Mr Gatt and that some of his evidence was implausible.

36. Those circumstances meant that Mr Borg’s evidence had to be approached with considerable caution, before it was accepted, as the jury was directed.

37. It must thus now be taken into account that it was after Mr Borg learned that he had become a suspect and before he was charged with murder, that in a conversation which he had with a friend in his car, which was then under police surveillance, at a time when Mr Borg was clearly aware that conversations in his car might be the subject of such surveillance, that Mr Borg first said that it was only Mr Gatt who had been armed with a gun and that he had not expected Mr Gatt to produce it, or fire it. Mr Borg agreed in cross-examination, that this account was untrue.

38. It was an account which Mr Borg deliberately repeated, however, even after he was charged with murder. This was the account which he gave in his police interview on 8 May 2014, when he offered to give evidence against Mr Gatt. Then, after Mr Gatt was charged with murder in 2014, Mr Borg offered to plead guilty to concealing an indictable offence. Even at his committal hearing in 2015, Mr Borg’s case remained that he was not armed with a gun when Mr Hijazi was shot. Mr Terepo was thus cross-examined on the basis that only one of the offenders had pointed a gun at the car, contrary to what Mr Borg later confessed. Understandably Mr Terepo believed that both guns had been fired, but expert ballistic testing established that he was wrong in that belief.

39. After committal, Mr Borg offered to plead guilty to being an accessory after the fact. That offer was also not accepted. It was only shortly before his joint trial with Mr Gatt in 2017, that Mr Borg entered a plea to murder on agreed facts which included that while he, too, had been carrying a gun, he was not the shooter. Thus it was that Mr Borg came to be sentenced on that basis. He also gave evidence to similar effect at Mr Gatt’s trial.

40. In his evidence Mr Borg departed from aspects of the facts agreed in his case, however, revealing more about the nature of his relationship with Mr Gatt and the extent of his involvement with him in their drug dealing and their access to firearms. Some other parts of Mr Borg’s evidence was also implausible, for example, that a gun had been hidden in a stash spot in the Corolla which was, on other evidence, physically impossible.

41. Thus it is that it must be accepted that Mr Borg’s evidence is not a reliable basis for concluding that it was Mr Gatt who fired the fatal shots.

42. Also to be taken into account is that while the Crown’s circumstantial case established that Mr Gatt had a motive for the murder, in retaliation for the shots which had earlier been fired at his van on 8 June, while he was with his girlfriend at Lakemba, that also did not prove that it was Mr Gatt who fired the fatal shots.

43. Forensic examination of the bullet later found in the van certainly established that shots had been fired at the van by the pistol which police seized on 16 June, which an optical surveillance device had captured Abbas Hijazi, a friend of Mr Hijazi, earlier handling in a car.

44. In cross-examination Mr Borg’s evidence was that Mr Gatt had told him that this shooting had occurred the night before Mr Gatt had left to go overseas on a holiday as he was driving out of a McDonalds and that Mr Gatt believed that Bassil Hijazi and his friend Abbas Hijazi had been involved. Mr Borg also said that he had heard that they had later both claimed that they had been involved in that shooting, but Mr Gatt had not told him that he thought it was Bassil Hijazi who had shot at him. Mr Borg was also not certain whether he had learned of the shooting before or after Mr Gatt’s return from overseas, a week later.

45. Mr Gatt did not deny his involvement in this shooting, but claimed that it occurred on 11 June, not near the Lakemba McDonalds, but further away in an industrial area to which he had driven, followed by the shooter and that it was not of concern to Mr Borg. This evidence was implausible given his evidence about the nature of Mr Borg’s involvement in their drug dealing business; their friendship; that police had not received any reports of such a shooting that night; and that the van had been used in their drug dealing.

46. 11 June was after the murder weapon was fired at Hudson Street Hurstville, on 9 June. Both Mr Borg and Mr Gatt denied having been involved in that shooting, or ever having possession of the murder weapon, which they each said belonged and had been used by the other, who had disposed of it, after the murder. What they could not deny was that one of them had used that weapon to kill Mr Hijazi.

47. The circumstantial evidence included CCTV footage near the scene of the Hudson Street shooting, where a car similar in appearance to that of Mr Gatt’s girlfriend’s car was captured. She later reported to police that her number plates had been stolen.

48. On the evidence it is thus certainly possible that the murder weapon was sourced on 9 June, but the evidence does not establish by whom. As the Crown finally conceded, the evidence did not establish that it was Mr Gatt who then fired that gun.

49. It is also relevant that on their evidence both Mr Gatt and Mr Borg had earlier been involved in a fight with Bassil Hijazi and another unidentified man, in which punches had been exchanged. Other evidence established that Bassil Hijazi and Abbas Hijazi also had access to guns, in Bassil Hijazi’s case, guns which he had also discussed using in conversations recorded during police surveillance. Bassil Hijazi had also been involved in another shooting in which he had been injured, only some two weeks before his death.

50. It is thus certainly also possible that it was Bassil Hijazi who fired shots at Mr Gatt’s van, whether that occurred on 8 or 11 June. Both Mr Gatt and Mr Borg were later involved in his murder. That was consistent with them both having come to have a belief that Bassil Hijazi had been involved in the shots fired at the van which they also used in their profitable drug dealing business.

51. On both their evidence, Mr Gatt and Mr Borg were then the closest of friends, at times having earlier lived together and living together again for weeks after the murder. They were then very successfully pursuing their substantial drug dealing operation together, neither having needed to pursue other work for some time, because the business was generating considerable income for both of them, although in their evidence they also disputed who had the larger share of the business and both denied having any real interest in owning or using weapons, in Mr Gatt’s case, even during the murder. Despite how they each sought to minimise the extent of their involvement in the murder and their access to and use of guns, the evidence established, however, I am satisfied, beyond reasonable doubt, that they both carried a gun when they murdered Mr Hijazi.

52. Further, on forensic examination of the three firearms later found in Mr Gatt’s possession, when he was having them moved with his belongings to Melbourne, DNA linked them variously with Mr Gatt, his girlfriend and Mr Borg. On Mr Borg’s evidence he was carrying a Beretta which belonged to Mr Gatt when Mr Hijazi was murdered, but the Beretta found in Mr Gatt’s possession, which he claimed belonged to Mr Borg, as did the murder weapon, connected them both to that weapon.

53. In light of all of the evidence, it must be concluded that neither of these two serious offenders were telling the entire truth about what happened when they together murdered Mr Hijazi on 29 July 2013 and that in their evidence they both attempted to minimise the extent of their own real involvement in his death.

54. While the evidence thus did not establish beyond reasonable doubt, who fired the fatal shots, it did establish that at the time of the murder, Mr Gatt and Mr Borg both had an interest in protecting their business and themselves and that they had the means to do so, whoever it was who actually owned the guns, which they used, or fired the fatal shots.

55. In the result, I am satisfied that Mr Gatt cannot be sentenced on the basis that it was he who fired those shots. He must rather be sentenced on the basis that the evidence established beyond reasonable doubt only that Mr Hijazi was murdered as part of the joint criminal enterprise which he pursued with Mr Borg.

The evidence establishes that Mr Gatt’s offence was more serious than that for which Mr Borg was sentenced

62. The maximum sentence and standard non-parole periods fixed for this offence are statutory guideposts which must be borne in mind on sentencing, but as I have explained, the maximum sentence of life imprisonment is reserved for extreme offences of murder: R v Lewis [2001] NSWCCA 448 at [60].

63. Mr Gatt’s offence did not fall into this category, even though it was objectively a very serious instance of murder. Had the evidence established that it was Mr Gatt who fired the fatal shots, his offence would have been more serious than it undoubtedly was, but even on what was established, his offence fell above the mid-range of seriousness, involving as it did Mr Hijazi’s cold blooded execution.

64. In Mr Borg’s case, on the facts then agreed and the evidence Mr Borg then gave, I also concluded that his offence fell above the mid-range. But I am also satisfied that on what was proven in Mr Gatt’s case, his was an even more serious offence, even though it was not proven that he was the shooter.

65. That is because while I found in Mr Borg’s case that the evidence established that he was not merely Mr Gatt’s driver that night, but rather a willing participant in the joint criminal enterprise during which he appreciated that Mr Gatt might cause Mr Hijazi really serious harm, if he used the weapon with which he was armed, to shoot at Mr Hijazi and undoubtedly came to realise that Mr Gatt was likely to kill Mr Hijazi, when he began firing his weapon in close range at Mr Hijazi, I also concluded that the evidence still left a doubt that Mr Gatt executing Mr Hijazi, rather than intimidating or even seriously injuring him, was what had earlier been decided by both Mr Gatt and Mr Borg.

66. That doubt flowed from the evidence of Mr Borg’s prior character; his limited criminal record; his mental health and the evidence as to the nature of his relationship with Mr Gatt; the agreed fact that the gun which Mr Borg carried and which was later found at Mr Gatt’s apartment, belonged to Mr Gatt; Mr Borg’s unchallenged evidence that Mr Gatt directed him to carry that gun, when he left the car with Mr Gatt; as well as the unchallenged account which Mr Borg gave the psychologist who examined him, that he was not aware that a murder was going to take place.

67. On all of the evidence received at Mr Gatt’s trial, however, including that which emerged from Mr Borg’s cross-examination, I am satisfied that many of the conclusions I reached in his case as to the nature of Mr Gatt’s offence and doubts which I then had about the nature of this joint criminal enterprise, are not now available. That includes, most importantly, that it was Mr Gatt who fired the fatal shots.

68. As I have explained, it is my duty now to determine the facts relevant to Mr Gatt’s sentencing, which can only rest on what emerged in evidence before the jury at his trial, when both he and Mr Borg gave evidence and were cross-examined and the Crown advanced its circumstantial case.

69. On all of that evidence, I am satisfied that the Crown has proven beyond reasonable doubt that Mr Gatt’s offence involved a cold blooded execution, committed during a joint criminal enterprise, soon after he and Mr Borg learned, while at the Nanouh brothers’ house at Hurstville, that Mr Hijazi was at the Bexley car park. They then drove immediately there together, parked the car and walked to the car park. Having established where Mr Hijazi was, together they drove into the car park and stopped near Mr Terepo’s car, where Mr Hijazi was sitting in the back seat.

70. Mr Gatt and Mr Borg were both armed when they then approached that car together and both pointed their guns at the car. Only one of them then fired the hail of seven bullets which caused Mr Hijazi’s death, one striking him in the neck and the second in the chest. Those shots were undoubtedly fired with intent to kill, that intention having been formed when they drove to where they had learned Mr Hijazi was to be found, shooting him without warning or discussion, as soon as they located him.

71. That no-one else was seriously injured or killed that night, either the other two people cowering in the front of the car, as Mr Terepo explained in the accounts he later gave, or the other two people standing nearby, was a matter of pure luck, given what the forensic evidence established as to what the bullets which were fired struck. As was accepted for Mr Gatt, this deliberate shooting in a public car park was inherently dangerous to anyone else in the vicinity. He must be sentenced accordingly.

Moral culpability

72. I am also satisfied that Mr Gatt’s moral culpability for his offence must be assessed on the basis that his offence, committed together with Mr Borg in the context of their drug business, using the firearms to which they each had access and pursued in the way I have explained, when they learned of Mr Hijazi’s whereabouts at the Bexley car park and located him in Mr Terepo’s car, was not merely “opportunistic and almost spontaneous”, as was submitted for Mr Gatt, even though it may not have involved a great deal of prior planning.

73. In the result, I am satisfied that Mr Gatt’s moral culpability for his offending must be assessed as being significant.

Aggravating and mitigating factors

74. Section 21A of the Crimes (Sentencing Procedure) Act identifies the aggravating and mitigating factors which must be taken into account on sentence.

75. That Mr Gatt was on conditional liberty at the time of his offence is an aggravating matter which must be taken into account: s 21A(2)(j). That his offence was committed in company, must also be taken into account as another aggravating matter: s 21A(2)(e).

76. Mr Gatt also has a history of other offending which does not entitle him to leniency in this sentencing exercise. As well as an offence of assault with intent to rob committed while he was a juvenile and the offences for which he was sentenced by Yehia DCJ, his record includes drug possession offences, driving offences, and an offence of resisting an officer in the execution of his duty. He has also committed another offence of affray while in custody at Goulburn Correctional Centre in January 2016. He was sentenced for that offence to imprisonment for 22 months commencing 8 September 2016 and concluding 7 July 2018.

77. In that offence Mr Gatt struck his co-offender during an altercation in which he was attacked, but which was only brought to an end when an officer fired a warning shot into a wall, fearing for his co-offender’s life. Mr Gatt then suffered a small injury to his temple and the co-offender a large gash to the chin which required sutures, a suspected broken nose and a small gouge consistent with his head being pushed into a fence, requiring treatment in hospital.

78. In the result it is not open to reach any positive conclusion as to mitigating matters in Mr Gatt’s case, such as that he is unlikely to re-offend, or has good prospects of rehabilitation, despite his relative youth at the time of the murder. Furthermore, his own evidence as to the nature and extent of his prior drug offending established that his criminal history was much more serious than was disclosed by his record, or by Yehia DCJ’s sentencing remarks, which took into consideration what he had advanced by the account he gave to the expert who examined him and what he had said in the letter he wrote to the District Court.

79. That Mr Gatt now has any remorse or good prospects of rehabilitation may also not be found, given that he has provided no evidence that he has accepted responsibility for his actions, or that he has acknowledged the injury, loss or damage he has caused and has committed another serious offence while in custody: s 21A(3)(h) and (i).

General and specific deterrence

80. It follows that both general and specific deterrence have a real role to play in the sentence imposed upon Mr Gatt, in order not only to deter him from such offending, but also to deter others who might consider so breaking the law.

81. Given Mr Gatt’s prior and subsequent criminal record, there can be no doubt about this conclusion, given the need which arises on the evidence I have discussed, to pay proper regard to the need for community protection: see Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; [1988] HCA 14.

Mr Gatt’s personal circumstances

82. While account also has to be taken of Mr Gatt’s personal circumstances when arriving at his sentence, unusually he led no evidence about such matters in this case, even though he earlier led such evidence on sentence before Yehia DCJ, after he entered his plea. That, of course, was a forensic decision for him to make.

83. The evidence does establish Mr Gatt’s relative youth at the time of the murder he committed when he was only aged 23 years; the extent of his prior criminal record; and that his involvement in crime was much more extensive than that record reflects.

84. Without objection, the Crown tendered Yehia DCJ’s sentencing remarks. There the evidence which Mr Gatt had then led about his personal circumstances was discussed, but neither the expert evidence which he then relied on, nor the letter which he then wrote to that Court, were tendered in this case.

85. Neither party referred to s 91 of the Evidence Act 1995 (NSW), which provides that evidence of a decision is not admissible to prove the existence of a fact that was in issue in other proceedings, even if relevant for another purpose. Nevertheless, it seems to me that in the circumstances which have arisen, little weight can be given to what Yehia DCJ’s judgment reveals about the evidence Mr Gatt then led about his subjective circumstances.

86. That is because the evidence in this trial, including that which Mr Gatt himself gave, revealed that his personal circumstances included involvement in drug dealing and with firearms, which was much more extensive than the evidence before Yehia DCJ disclosed.

87. As the Crown submitted, had Mr Gatt then been sentenced on the basis of the evidence which he gave in this case, it is likely that his sentence would have been different, because positive conclusions which Yehia DCJ then reached, for example in relation to his prospects of rehabilitation, would appear not to have been open.

88. Despite this Mr Gatt must still now be sentenced for this offence, on the basis of the sentence which was then imposed upon him and in light of what the evidence led in this case, limited though it was, establishes about his personal circumstances.

89. On that evidence, while in the past Mr Gatt had pursued other work as a courier, for some considerable time he had made his living from his extensive drug dealing. That had enabled him to lead a lifestyle which included overseas travel for holiday, but it also led to his involvement with firearms and ultimately, Mr Hijazi’s murder. There was no evidence that his drug dealing was the result of anything other than preference on Mr Gatt’s part. Even though he may have come to believe that he had to arm himself, because he was at risk of violence from others in the criminal milieu in which he had involved himself, as was submitted for Mr Gatt, that is no mitigating matter.

Mr Borg’s sentence: parity and proportionality

90. As I have explained, Mr Borg was sentenced on facts agreed between the parties in his case, which included that it was Mr Gatt who fired the shots which killed Mr Hijazi and on evidence which he then gave, which led me to conclude that there were doubts as to the nature of his involvement in the joint criminal enterprise. His criminal record was more limited than that of Mr Gatt, but they were both on conditional liberty, at the time of the murder. Mr Borg’s sentence reflected a starting point of 27 years.

90. The view urged for Mr Gatt was that his sentence would be similar to that imposed on Mr Borg, given that he, too, would be sentenced on the basis of his involvement in the joint criminal enterprise. Reliance was also placed on the 28 year sentence imposed on Wassim Tiriaki, in circumstances said not to be dissimilar: R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764.

91. For the reasons I have explained, I have concluded that the evidence received at Mr Gatt’s trial established that his offence was somewhat more serious than that for which Mr Borg was earlier sentenced, even though it was not established that he fired the fatal shots. It is also relevant that evidence of the kind led in Mr Borg’s case, as to his personal circumstances, was not led in Mr Gatt’s case.

92. Accordingly, the sentence imposed upon Mr Gatt must reflect these differences. The circumstances of Mr Gatt and Mr Borg and their involvement in Mr Hijazi’s murder having been found to have been relevantly different on the evidence led in their respective cases, it follows that different sentences must be imposed upon them: Lowe v The Queen (1984) 154 CLR 606 at 623; [1984] HCA 46.

Mr Gatt’s other offending: totality

94. The application of the principle of totality, considered together with the parity principle I have discussed, also requires that consideration be given to the aggregate or overall sentence which is “just and appropriate” to the totality of Mr Gatt’s offending behaviour, including that involved in the firearm, drug and proceeds of crime offences for which Yehia DCJ sentenced him.

95. That is because in cases such as this, the Court must not content itself with doing the arithmetic and passing the sentence which the arithmetic produces. It must rather look at the totality of Mr Gatt’s criminal behaviour and consider what the appropriate sentence for all of his offences is: Mill at 63.

96. If the ultimate aggregate of all of the sentences exceeds what is called for in the whole of Mr Gatt’s offending, there must then be a downward adjustment: Postiglione at 308. The task of the Court is to ensure that the overall sentence is neither too harsh, nor too lenient: R v KM [2004] NSWCCA 65 at [55]. This may not, however, involve some kind of discount for multiple offending: R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253 at [112]

97. This approach is required because the severity of a sentence is not simply the product of a linear relationship, but may increase at a greater rate than an increase in the length of a sentence, although in cases of very serious offending such as that of Mr Gatt, very long sentences must still be imposed: R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15]-[18].

98. Extremely long total sentences may also be “crushing”, in the sense of inducing a feeling of hopelessness or destroying any expectation of a useful life after release. That can both increase the severity of a sentence and destroy such prospects as there may be, of an offender’s rehabilitation and reform. In some cases, however, an offender may not be entitled to the element of mercy which is involved in the adoption of this constraint: MAK at [17].

99. Thus there was no issue between the parties that proper account must be taken of the aggregate sentence imposed by Yehia DCJ in 2015, namely, a non-parole period of 5 years, 3 months, commencing 2 November 2013 with the sentence expiring on 1 November 2021. Mr Gatt is first eligible for parole for that offending on 1 February 2019, with a balance of term of 2 years, 9 months. Attention must also be paid to the sentence imposed for the offence which Mr Gatt committed while in custody, for which he was sentenced to 22 months imprisonment commencing 8 September 2016 and expiring 7 July 2018.

100. The principle of totality is given effect by sentences for one offence being made partially concurrent with the sentence imposed for other offending. How that is to be done in Mr Gatt’s case is, however, also in issue.

101. Mr Gatt was sentenced by Yehia DCJ, as I have explained, on evidence which included a letter he wrote, which departed in material respects from the evidence which he gave in these proceedings, about the nature of and his involvement in the drug business which he conducted together with Mr Borg.

102. Yehia DCJ concluded that Mr Gatt should be sentenced on the basis that this was the first time he had engaged in serious criminal activity, even though on his own evidence in this case, he had been involved in serious drug offending for years prior to the offences for which Yehia DCJ sentenced him. His evidence in this case established that his drug and proceeds of crime offending was more serious than the evidence he led in the District Court established, as he well knew.

103. That cannot be ignored in this sentencing exercise, because it is relevant to the resolution of the issue as to accumulation and concurrency of Mr Gatt’s sentence for the murder of Mr Hijazi, that being one of the most serious offences which a person can commit.

104. I am satisfied that in all of the circumstances I have discussed, the application of the totality principle to Mr Gatt’s sentence is thereby somewhat constrained. While I agree with the parties’ common position that there must be some concurrence in the sentence imposed upon him, despite the offence he committed while in custody, after he was sentenced by Yehia DCJ, I am not satisfied, however, that any further concurrence than that for which the Crown contended, can be accepted in all of these circumstances. Accordingly, Mr Gatt’s sentence will commence on 1 February 2019.

105. I consider that to order any further concurrence would involve error, resulting as that would, in the sentence imposed upon Mr Gatt for the very serious offence for which he is now being sentenced, in an impermissible discount for his other multiple serious offending.

Special circumstances

106. I am also satisfied that the evidence I have discussed establishes that Mr Gatt does present a real risk of engaging in further violent offending, once released on parole. There can thus be no question that he will then require close and careful supervision.

107. In my assessment, however, given the length of the sentence which must necessarily be imposed upon Mr Gatt, the result of the statutory ratio will provide him with a suitable period for such supervision.

108. In the result, there is no need for any finding of special circumstances.

Victim Impact Statements

109. Under s 28(4) of the Crimes (Sentencing Procedure Act), on the application of the prosecutor and if the Court considers it appropriate to do so, the victim impact statement made by Mr Hijazi’s mother, which was tendered without objection, may be considered and taken into account on sentencing Mr Gatt, on the basis that the harmful impact of his death on the members of his immediate family, is an aspect of the harm done to the community. There was no such application in this case.

110. Nevertheless, it should be now again be said in open court, that the law has long recognised that all human life is precious. One human life cannot be valued over that of another and the death of any person is a harm which an offender inflicts not only on the victim and the victim’s family, but also on the community in general.

111. In this case the victim impact statement shed real light on the harm which Mr Hijazi’s murder has done his family, Mr Hijazi’s death having been caused as it was by acts which amounted to an execution, in circumstances which must have left him in both terrible pain and awful fear, before he died as he did.

112. I again offer my very deepest sympathy to Mr Hijazi’s family for their loss and what they must continue to bear, as a result. Their very difficult situation is again acknowledged, in order to assure them that their suffering is recognised by the community of which we are all members.

113. It is to be hoped that the Crown’s pursuit of these proceedings and their resolution will give them some further small comfort, shedding light as that does on how our society and its legal system have dealt with the dreadful offending which Mr Hijazi’s murder involved.

The sentence

114. Having considered all of the matters I have discussed in the way I explained at the outset, I have concluded that Mr Gatt’s sentence must be for a term of imprisonment of 28 years, commencing on 1 February 2019. The application of the statutory ratio results in a non-parole period of 21 years. In the circumstances in which he is being sentenced, Mr Gatt is not entitled to any discount on that sentence.

115. This means that the earliest date that Mr Gatt will be eligible for release is 31 January 2040. That will depend on him then convincing the Parole Authority that he should be released on parole. His sentence will expire on 31 January 2047.

Orders

116. For the reasons I have given, I now make the following orders:

1. Joseph Gatt you are convicted of the murder of Bassil Hijazi.

2. You are sentenced to a non-parole period of 21 years, commencing on 1 February 2019 and expiring on 31 January 2040.

3. I set a balance of term of 7 years, which will expire on 31 January 2047.

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Decision last updated: 29 June 2018