R v Gattellari; R v Kaminic - [2013] NSWSC 1097

Supreme Court

New South Wales

Medium Neutral Citation: R v Gattellari ; R v Kaminic [2013] NSWSC 1097
Hearing dates: 11, 12 February 2013
Decision date: 10 May 2013
Jurisdiction: Common Law - Criminal
Before: Latham J
Decision:
Fortunato Gattellari - Convicted of the murder of Michael McGurk. Sentenced to a non-parole period of seven (7) years and six (6) months to date from 13 October 2010, expiring 12 April 2018. The balance of term expires 12 October 2020. Eligible for release on 13 April 2018
Senad Kaminic - Convicted of accessory after the fact to murder. Sentenced to a non-parole period of two (2) years and six (6) months to date from today, 10 May 2013, expiring 9 November 2015. The balance of term is two (2) years expiring 9 November 2017. Eligible for release on 10 November 2015
Catchwords: SENTENCE - guilty plea to accessory before the fact to murder (Gattellari) - guilty plea to accessory after the fact to murder (Kaminic) - top of the range of objective gravity (Gattellari) - exceptional nature of assistance provided to authorities - discount at top of the range - no finding of special circumstances - below the upper range of objective gravity (Kaminic) - exceptional nature of assistance - finding of special circumstances
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Bourchas [2002] NSWCCA 373
Category: Sentence
Parties: Regina - (Crown)
Fortunato Gattellari - (Offender)
Sena Kaminic - (Offender)
Representation:
Counsel
J Pickering SC - (Crown)
A Bellanto QC - (Offender)
H Dhanji SC - (Offender)
Solicitors
Solicitor for Public Prosecutions - (Crown)
Wyndham Prem Commercial Lawyers - (Offender)
William O'Brien & Ross Hudson Solicitors - (Offender)

File Number(s): 2010/339801, 2010/339798

SENTENCE

Fortunato (Lucky) Gattellari, appears for sentence with respect to the murder of Michael McGurk on 3 September 2009. He pleaded guilty on 7 September 2012 in this Court to murder on the basis of accessory before the fact to that offence, following rejection by the Crown of an offer to plead to a charge of solicit to murder. The offence carries a maximum penalty of life imprisonment and carries a standard non-parole period of 20 years' imprisonment.
Senad Kaminic, appears for sentence on a charge of accessory after the fact to the murder of Michael McGurk. That offence carries a maximum penalty of 25 years' imprisonment. He pleaded guilty on 16 August 2012 in the Local Court and has adhered to that plea.

The Murder of Michael McGurk

The following represents the agreed factual basis upon which the offenders are to be sentenced. These facts, to the extent that they attribute a major role in the murder of Michael McGurk to Ronald Medich, Haissam Safetli and Christopher Estephan, have not been established against those persons by admissible evidence. That is in fact the purpose of the offenders' proposed evidence at committal and trial of those persons on the charge of murder.
The italicised passages in these reasons are referable only to Kaminic. They do not form part of the agreed facts for the purposes of sentencing Gattellari. Otherwise, the facts related are common to both of the offenders.
Gattellari, and Ronald Medich, enjoyed a close business relationship for several years prior to 2009. Medich is a prominent property developer and businessman who invested significant amounts of money into various business ventures proposed by Gattellari. The latter acquired a number of companies on behalf of Medich. These companies had financial difficulties which made them ripe for acquisition and development. All the companies' shares were transferred into an entity owned by Medich who was the sole director and shareholder. Gattellari's role was to oversee the running of these businesses on behalf of the entity. Gattellari was also involved in collecting debts owed to Medich.
Kaminic, became an associate of Gattellari's and undertook the role of driver and general assistant as and from September 2008. Kaminic also assisted Gattellari in collecting money owed to Medich.
During 2007 Medich developed a business relationship with the deceased, Michael McGurk. McGurk was a 44-year-old married man with four children. He was the director of a finance company which operated from a Sydney address. He was also involved in property development, short-term finance lending and debt collection. He was the director of well over 20 other companies which were mainly linked to short-term money lending or development projects.
During late 2008 the business relationship between Medich and the deceased deteriorated. In early 2009 each of them instigated a number of civil actions in the Federal and Supreme Courts against each other, claiming that the other owed significant amounts of money. These court proceedings were costly and protracted. A considerable amount of animosity was generated by these proceedings.
Several business disputes underpinned the legal proceedings. One of those disputes concerned a company called Amazing Loans which offered high interest short-term loans. In 2007 Medich had invested $25 million in that company and by September 2007 $11.5 million of that had been drawn down from the $25 million loan facility.
The relationship between Medich and the principal of Amazing Loans deteriorated to the point where Medich employed the deceased to retrieve his investment. The deceased assisted Medich to obtain 30% of the principal's shares in the company which was said to be worth over $50 million. In May 2008 the deceased demanded that the principal pay $11.5 million to Medich by purchasing the shares that had previously been transferred to him. The principal refused.
The deceased travelled to Hawaii where the principal was then living at a time when the deceased's relationship with Medich had begun to sour. Medich believed that whilst in Hawaii the deceased crafted a deal with the principal to sell the shares at an inflated price. Medich further believed that the disparity in the sale price would not be disclosed to himself, thereby resulting in the deceased receiving a significant windfall on the basis that the principal would no longer be threatened by the deceased.
A further dispute in which the deceased intervened on Medich's behalf concerned a property in Wolseley Road, Point Piper. The purchaser of this property from Medich failed to pay the full purchase price. The deceased acted as trustee for Medich's interests in relation to two mortgages over the property. The deceased was appointed a trustee under the terms of two declarations of trust.
After the commencement of legal proceedings between the deceased and Medich, Medich sought to remove the deceased as a trustee in relation to these mortgages. Ultimately the deceased agreed to resign as trustee but required indemnification of the costs and expenses incurred by him and for any potential liability as a trustee prior to his resignation. Consent orders were signed on 22 July 2009.
In January 2009, the deceased was charged with damaging the property by arson, although by August 2009 the Office of the Director of Public Prosecutions directed that there be no further proceedings.
Bentley Smythe Pty Ltd was operated by the deceased as a short-term loan facility at high interest. Medich also invested in this business but later came to believe that the deceased was using Medich's money for his own purposes and not for the business. This dispute underpinned the proceedings in the Federal Court.
In February 2009 the deceased illegally recorded a conversation he had with Medich. The deceased then claimed publicly that he possessed a recording between himself and Medich that would implicate the Government in corrupt deals with Medich over the proposed development at Badgery's Creek.
These claims by the deceased grossly embarrassed and humiliated Medich. Medich came to believe that he was the laughing stock of the eastern suburbs, that he had been humiliated in the eyes of his wife and that the deceased was costing Medich considerable amounts of money.
As a result of these various disputes, Medich began to express to Gattellari a wish that the deceased be killed. Medich constantly complained to Gattellari of the exorbitant cost and embarrassment involved in the various proceedings against the deceased. Medich became increasingly concerned that he would not recoup the money he had invested in the deceased's company.
In March 2009, a co-accused, Haissam Safetli, was debt collecting for Gattellari on behalf of Medich. Safetli was a friend of Kaminic, who introduced him to Gattellari in about mid-2008. At Medich's request, Gattellari called Safetli into his office at Chipping Norton and asked him to carry out some surveillance on the deceased. Safetli was to supply Gattellari with information relating to the deceased's home address and business address that had been provided to Gattellari by Medich. Gattellari instructed Safetli to follow the deceased and find out everything he could about him.
Safetli attended the deceased's home and business address and recruited other associates, including his brother, to conduct surveillance on the deceased.
Safetli's brother took photographs of the deceased, downloaded them onto a CD, and provided them to Kaminic to pass on to Gattellari. Any information obtained during the course of the surveillance was continually relayed from Safetli to Kaminic to Gattellari and then to Medich.
Towards the end of March, Gattellari had a meeting with Medich wherein they discussed the deceased and the ongoing disputes between them. Medich told Gattellari "I need to put an end to this. I need some help from you, I need you to find someone to kill him for me." Gattellari replied "are you sure about this, because there is no going back" to which Medich replied "yes, I am absolutely sure, if you can find someone I want him dead."
Medich also told Gattellari that once the deceased had been killed he wanted to apply pressure to the deceased's wife so that she would resolve her husband's outstanding legal disputes with him.
A couple of days after this conversation Medich asked Gattellari whether he had found anyone to "do that job". Gattellari then discussed with Kaminic an approach to Safetli to determine if he would carry out the job.
Kaminic organised a meeting between Safetli and Gattellari at Gattellari's home. Gattellari told Safetli in the presence of Kaminic that he was not happy with the surveillance work that had been carried out and that it had cost Medich a lot of money. He told Safetli and his brother that "Medich wanted him gone. Can you do this? You've been watching him now, you know him, it is going to be done regardless. Do you want to organise it?"
Gattellari negotiated a price with the Safetli brothers to carry out the murder. It was agreed that they would be paid $300,000 to murder the deceased. It was further agreed that Gattellari would organise for payment of expenses to Safetli and upon the completion of the contract Gattellari would pay him the outstanding amount.
During this meeting Gattellari also informed Safetli that after the deceased had been murdered Medich wanted the deceased's wife to receive a threatening message to the effect that she was required to repay her husband's debts.
A short time later Gattellari informed Medich that he had found someone to kill the deceased but that it would cost between $300,000.00 and $500,000.00 in total for the murder of McGurk and the intimidation of Mrs McGurk. Whilst Medich complained about the amount he nonetheless agreed to that sum.
A couple of days later Gattellari drove to Medich's home in Wolseley Road Point Piper. Medich gave Gattellari a cryovac sealed bag containing cash, reportedly in the sum of $250,000.00, "to take care of McGurk". Gattellari took the bag and drove back to Chipping Norton. Gattellari took $45,000.00 from the bag and place the remaining money in a safe in his bedroom.
Gattellari placed the $45,000.00 in a brown paper bag and gave it Safetli, in the presence of Kaminic, for expenses associated with the murder. This money represented the first payment to Safetli for the murder of the deceased. Gattellari made a record in his 2009 diary of this payment and all amounts subsequently given to Safetli for the murder of the deceased.
Over the following days, Safetli was advised by Kaminic that the "big boss" wanted the murder to look like a cocaine overdose gone wrong. However, as the weeks went by, Medich's frustrations increased. Gattellari and/or Kaminic each regularly spoke or met with Safetli to enquire after the progress of the matter and to pass on Medich's wishes that the murder be committed as soon as possible. At one such meeting in his home, Gattellari said to Safetli in the presence of Kaminic "this is costing Ron a lot of money, it is causing him headaches, he just wants it done - get it done any way you can."
On 16 May 2009, Gattellari and Medich tarvelled to China on business. During this trip Gattellari sent Kaminic a text message to the following effect "if they're ever going to do it, this would be the time." The message was sent following repeated harassment from Medich about the delay.
At about this time, Gattellari directed Kaminic to pick Medich up from his home and drive him to the airport. Gattellari also asked Kaminic to collect money for Safetli from Medich. Kaminic arrived at Medich's home at 9 am and waited for about two hours. Medich gave Kaminic a bag and said "Here is $150K in cash for the job. Give it to Lucky." Kaminic took Medich to the airport, then drove back to Gattellari's home where he gave Gattellari the bag.
Between April and July 2009, Safetli tried to find and engage someone willing to carry out the murder with him. An associate appeared to be interested and willing to commit the murder. However this associate regularly took significant amounts of cash but prevaricated when it came to carrying out the murder. Medich continued to pressure Gattellari to ensure that the murder was carried out as soon as possible. Gattellari and Kaminic were in turn making constant enquiries of Safetli as to when the event would take place. During any mobile phone communications between them, they would refer to the contract to murder as "rims, or wheels, or tyres".
During July 2009 Gattellari was still under pressure from Medich as to when the murder was going to take place. Eventually, Gattellari informed Kaminic who called Safetli to a meeting at the factory in Chipping Norton. Safetli was told of Medich's concern and asked whether he "needed a hand". Safetli accepted that offer.
Gattellari then had a discussion with an associate, who arranged a meeting between Safetli and another potential recruit to carry out the murder. This meeting was to be held at Malabar RSL and was attended by Kaminic. Gattellari was not present. The recruit attended the meeting and stated he was prepared to carry out the murder but he asked for a considerable sum of money upfront, whereupon Gattellari told Safetli he was not prepared to part with that amount of Medich's money to someone he did not know.
The deceased was on a family holiday in the Jindabyne region between 20 and 24 July 2009. His reporting conditions, imposed as part of his bail on the arson charge, were varied accordingly. Medich was informed of these arrangements by a police officer. On about 18 July 2009 Medich met Gattellari and told Gattellari of the deceased's intended trip to Jindabyne. Gattellari in turn instructed Kaminic to notify Safetli.
Safetli then requested an additional sum of money to fund a trip to Jindabyne to murder the deceased. His message was passed on to Gattellari through Kaminic. Gattellari obtained either $5000.00 or $10,000.00 from the money stored in his safe and gave it to Kaminic to give to Safetli.
Gattellari and Kaminic left Australia on 23 July 2009. Safetli prepared to drive to Jindabyne to murder the deceased but he never made the trip.
In early August 2009 Safetli discussed the murder contract with Christopher Estephan who was keen to become involved. Safetli and Estephan commenced preparations for the murder. It was agreed that Estephan would be paid $30,000.00 plus expenses for his role. Safetli then explain to Estephan that McGurk was the intended victim and showed him where the victim lived. These arrangements were carried out without the knowledge of Gattellari.
Estephan purchased a .22 calibre rifle and a single barrel shotgun. He provided them to Safetli for about $6000.00 which was part of the funds provided to Safetli by Gattellari.
At about this time, Kaminic received frequent text messages from Safetli stating the "job" was going to happen soon. Specific dates were proposed. Kaminic passed these messages on to Gattellari but nothing happened.
On 18 August 2009 Estephan stole a set of vehicle number plates from a Mercedes van in the Parramatta area. The following day Safetli and Estephan travelled to McGurk's home address with a rifle in Estephan's white Mercedes van. Estephan swapped his vehicle's numberplates for the stolen set. They arrived outside the deceased's home mid-afternoon and waited for him for several hours. They then abandoned the attempt to murder him on that day.
In the following days Estephan and Safetli modified the .22 "Norinco" brand rifle by using a hand grinder to cut off part of the handle and the barrel. This made the gun easy to use. They test fired the rifle to ensure that it was operational.
A few days later Safetli met with Gattellari and Kaminic at Chipping Norton and told him that the job would be done. Gattellari told Safetli that the deceased was costing Medich millions and that Medich wanted a "heads up" before the murder so that he could ensure he was in a public place when it occurred.
On 2 September 2009 Safetli and Estephan decided to commit the murder the following day. They decided to use Safetli's 2002 Toyota Hilux utility which was unregistered.
On the same day Gattellari and Kaminic travelled to Narooma and stayed overnight in a local hotel. Gattellari maintains that this trip was unrelated to the arrangements between Estephan and Safetli.
In the morning and early afternoon on 3 September 2009 Gattellari was in telephone contact with both Medich and Safetli. Shortly after 3 pm Gattellari received a text message from the phone of Safetli's brother.
At about 1 pm Gattellari and Kaminic arrived back in Sydney where they had lunch in a private room in a Chinese restaurant where they were joined by Medich. At about 4 pm they all left the restaurant and attended a massage parlour.
At around 1:30 pm Estephan arrived at Safetli's home in Elderslie near Camden with stolen number plates relating to a Hilux utility. They attached the stolen plates to the front and rear of Safetli's utility.
After they had placed the modified rifle in a bag and placed it in the cabin of the utility, they drove to Cremorne. The vehicle travelled eastbound on the M5 motorway, passing through a toll collection point without a valid electronic toll pass at about 2:54 pm. They arrived at Cranbrook Avenue Cremorne at around 3:30 pm, stopping the vehicle on the northern side of the street facing east towards Spofforth Street. They were directly opposite the deceased's home.
A short time later Estephan walked from the utility to the Cremorne Cellars bottle shop in Spofforth Street where he attempted to purchase alcohol. He was declined service because he was not able to provide valid proof of age. He returned to the vehicle.
At 6 pm Medich, Gattellari and Kaminic left the massage parlour. Medich went to the Bligh Bar in Sydney. Gattellari was driven to his home in Chipping Norton by Kaminic.
At about the same time, Safetli walked from the utility to Cremorne Cellars bottle shop where he purchased a bottle of Jim Bean before returning to the vehicle. On his return he consumed a quantity of whiskey and swapped seats with Estephan so that Estephan was now seated in the driver's seat.

The deceased drove from his York Street office, picking up his nine-year-old son and obtaining a takeaway meal on the way. They visited the Mosman newsagency at around 6:13 pm before attending the IGA supermarket, leaving at 6:23 pm to drive home.
At about 6:25 pm the deceased drove his Mercedes sedan from Spofforth Street into Cranbrook Avenue where he stopped on the southern side of the street outside the entrance to his home. As he opened the driver's door, leaned into the back seat to retrieve the shopping and began to exit the car, he was shot at close range by either Safetli or Estephan who had taken the modified rifle and walked quickly to the deceased's side of the vehicle. The deceased was shot behind his right ear in the presence of his son.
Following the shooting, Estephan drove the utility east towards Spofforth Street where he narrowly avoided a collision with another car at the roundabout on Spofforth Street. Safetli used a Phillips head screwdriver to dismantle the rifle. The vehicle travelled north towards Military Road. They then travelled over the Harbour Bridge and the Anzac Bridge before stopping in Bicentennial Park, Rozelle Bay. Safetli threw the detached metal frame of the weapon into Sydney Harbour at Rozelle Bay. On 15 September 2010, police divers recovered this weapon.
Safetli and Estephan then drove towards Safetli's home at Elderslie. At a point west of King Georges Road at Narwee on the M5 south-western motorway, they stopped in the breakdown lane, where Safetli threw the cutdown wooden stock of the rifle over the motorway sound partition. They continued on their journey and arrived at Safetli's home before 8 pm. There they built a fire in a pot, burnt their clothing, the stolen number plates and their mobile phones.
At 8:03 pm Gattellari or Kaminic received a text message from the mobile phone of Safetli's brother, reading "job's done". Kaminic received a call from Safetli's brother confirming "the job is done".
On the morning of the next day, Gattellari directed Kaminic to come to his home. On arrival, Gattellari gave Kaminic a large paper bag containing a grey/blue plastic case, weighing about 1 - 2 kilograms. Gattellari told Kaminic that it was a gun and that he was to "take this and put it somewhere." Kaminic then drove to his sister's home in Liverpool and hid the gun under the stairs. About three weeks later, Kaminic returned the gun to Safetli.
Gattellari met Medich at the Tuscany restaurant in Leichardt for lunch where he asked Medich if he was "happy that it is done?". Medich replied words to the effect "it's taken long enough."
Later the same day, Kaminic went to Gattellari's home and was given an envelope or bag. Gattellari told Kaminic it contained $20,000.00 for Safetli. Kaminic knew that it was part payment for the murder of the deceased. Kaminic sent a text to Safetli informing him that he was coming to his home. Kaminic drove to Safetli's home and put the money into a room. Safetli told him "the job is done." Estephan was also present.
Between 7 and 9 September 2009 Gattellari told Kaminic to go and collect a cheque from Medich as the final payment for the murder of the deceased. Kaminic drove to Leichhardt and collected an envelope from Medich's office and drove back to Chipping Norton where he handed the envelope to Gattellari. A few days later Kaminic was given another package of cash from Gattellari to give to Safetli, which he did.
Over the next few months, Gattellari would regularly give Kaminic a package or bag containing cash payments for the murder of the deceased. Kaminic would arrange to meet Safetli and would hand over the package. These amounts varied between $10,000.00 and $20,000.00.
Due to the intense media pressure on Medich, it was decided not to visit the deceased's wife in order to threaten her over the resolution of the legal proceedings at that time. However, Medich became increasingly frustrated that the death of the deceased had not resolved his financial and legal disputes with the McGurk estate. Medich complained to Gattellari that Mrs McGurk was demonstrating a determination not to settle the proceedings.
Some months later Medich reiterated to Gattellari that a message must be delivered to Mrs McGurk to pressure her into settling the legal disputes. Gattellari told Kaminic to convey Safetli to his office where Gattellari told Safetli in the presence of Kaminic that Medich wanted Mrs McGurk to receive a "visit". Safetli said he wanted $100,000.00 and Gattellari agreed.
Gattellari then approached Medich and informed him that he needed $100,000.00 for "the job". On about 30 July 2010 Medich handed Gattellari a shopping bag containing bundles of cash totalling $100,000.00. On about 4 or 5 August 2010 Gattellari gave Kaminic $50,000.00 of this amount to give to Safetli as an initial payment, which he did.
On 6 August 2010 Gattellari and Medich left Australia and travelled to China, returning on 12 August 2010. Kaminic met up with Safetli in Liverpool and provided further instructions to him about his approach to Mrs McGurk.
During this period of time Safetli engaged a registered source (who unbeknown to Safetli was authorised by police to co-operate with Safetli) to assist him in delivering the message to Mrs McGurk. On 8 August 2010 they drove to Cranbrook Avenue Cremorne arriving at about 7:30 pm. As directed by Safetli, the registered source disguised himself, walked up to the house and told Mrs McGurk to "pay her husband's debts" before leaving the home and returning to Safetli.
Safetli then notified Kaminic that the message had been delivered and Kaminic passed this message on to Gattellari in China who in turn informed Medich. Kaminic received $10,000.00 from Safetli as a commission for arranging Safetli's involvement in this "job".
The police investigation included the execution of search warrants on the home of Gattellari on 7 September 2009 and the interception of telephone services used by Medich, Gattellari, Kaminic, Safetli and Estephan in the months following 16 December 2009.
In various conversations recorded between 15 September and 12 October 2010, Gattellari, Safetli and Kaminic discussed the pressure arising out of the New South Wales Crime Commission hearings which were then on foot. Gattellari and Kaminic attempted to persuade Safetli to "take the rap" for all of them for the murder by making a handwritten confession excluding their involvement. In return they promised to fund his defence and look after his family. Kaminic, at Gattellari's request, repeatedly tried to persuade Safetli to take the course suggested by Gattellari, but to no avail.
Gattellari, Kaminic, Safetli and Estephan were arrested on 13 October 2010. Gattellari has remained in protective custody since that date. Medich was arrested on 26 October 2010.

The Basis of Gattellari's Liability, the Objective Gravity of the Offence and Assistance

Gattellari's liability for murder on the basis of being an accessory before the fact to that murder relies upon the following conduct :-

Approaching Safetli to carry out surveillance of the deceased at his home and office.

Receiving information and photographs from Safetli regarding the surveillance and passing this information on to Medich.

Instigating the recruitment of Safetli to murder the deceased in about March 2009 at the request of Medich.

Entering into an agreement with Safetli on Medich's behalf to murder the deceased and paying the money provided by Medich.

Informing Medich of the recruitment of Safetli and the amount of money requested by him.

Obtaining this money from Medich.

Storing the money in his own home.

Handing over the money as requested for the commission of the offence.

Placing the initial payment of $45,000.00 for expenses in a paper envelope and requesting Kaminic to give it to Safetli with the instruction that they needed to "start doing what they need to do" to commit the offence on behalf of Medich.

Passing on Medich's wishes that it was to be done in any way possible.

Meeting with Safetli to ascertain the progress of the planning of the murder.

Relating any information to Medich.

At the behest of Medich, constantly requesting Safetli to commit the murder as expediently as possible.

Sending a text message from China to Kaminic suggesting that it was an appropriate time to carry out the murder.

Providing information received from Medich to Safetli with regards to the deceased's trip to Jindabyne.

Passing on more money to Safetli for the purposes of following the deceased to Jindabyne.

Seeking alternative recruits when Safetli was unable to find someone willing to undertake the murder.

Facilitating the meeting between Safetli and the new recruit at Malabar RSL.

Determining that the new recruit was unsuitable.

The Crown acknowledges that there is no evidence of any direct and quantifiable financial benefit to Gattellari for his role in the murder. However, the Crown's contention is that this offender was considerably indebted to Medich in the sense that their long association and Medich's investment in the offender's business propositions effectively financed the offender, his family and his lifestyle. In these circumstances, it is said that the offender succumbed to pressure from Medich.
This is perhaps the most troubling aspect of the offender's role in the offence. The offender was at pains during his evidence on sentence to stress how "domineering" Medich was and how "totally obligated" he felt to Medich. The offender denied that his participation in the offence was motivated by the fear of personal harm or that it was in any way connected with his financial dependence on Medich. The offender maintained that he carried out Medich's wishes solely out of a sense of misguided loyalty, and only after attempting to dissuade Medich from adopting such a drastic course.
It is difficult however to disregard the fact that the offender was financially obligated to Medich. Of the various businesses recommended to Medich by the offender for investment by Medich, the offender himself invested no money. Rather, the offender's role was to turn the businesses into successful enterprises once they had been purchased by Medich. The offender received a weekly wage and a "guarantee that should things work out, that he would look after me." In other words, the offender acknowledged that if the businesses succeeded, he "expected to be compensated". The offender estimated that Medich had invested in the order of $15 million in business ventures proposed by the offender.
The offender agreed that he comprehended from the beginning that Medich was requesting that McGurk be killed. The offender had no direct relationship with McGurk and had only met him on a couple of occasions. Indeed, it seems that the offender knew very little about McGurk other than what Medich told him and what the offender gleaned via reports from Safetli. Notwithstanding that the offender has no relevant prior criminal history and is otherwise a person of good character, he performed a primary role in a sustained effort to execute a man on the say-so of his "employer". Ultimately, the offender was unable to explain why he was unable to resist Medich's request to have the deceased killed.
Central to the offender's senior counsel's submissions was the proposition that the offender was not to be punished for a "contract killing" because he was not to be rewarded financially. One compelling inference to be drawn from the evidence is that the offender acted at least in part in the belief that if he did not do Medich's bidding, he would be cut adrift from Medich's patronage and effectively left without any means of support. In that respect, the offence was to some extent financially motivated.
In any event, the offender's moral culpability is of a high order. It is not useful in the circumstances of this case to draw fine distinctions between direct or indirect financial benefit on the one hand and motives of loyalty on the other. At the end of the day, the Court must have regard to what the offender did.
It is entirely theoretical to speak of the offender's moral culpability relative to that of Medich, Safetli and Estephan, given that those persons are yet to stand trial. That said, I accept that the offender's moral culpability is of a lesser order than Medich's, although I would not distinguish it markedly from Safetli's or Estephan's.
Critical to the objective gravity of the offence is the offender's knowledge from the outset that McGurk was to be killed for money, his role in the negotiations with Safetli, his role in the transfer of money from Medich to effect the killing, and his ongoing encouragement of Safetli, all over a period of approximately six months. The offence stands towards the top of the range of objective gravity for such offences.
The contents of the confidential exhibits tendered in the proceedings, and the evidence of Detective Inspector Sheehy, establish that the offender's assistance to the authorities is of an exceptional nature. There is no need to canvass the nature of this assistance in detail. It is sufficient to note that the case against Medich, Safetli and Estephan hinges very substantially on the proposed evidence of this offender. The offender has provided many detailed statements to police over many days, totalling 550 pages. He has also assisted in his disclosures to the ICAC, thereby prompting further investigations and hearings. His assistance is significant, useful, apparently reliable, and timely. The Crown does not dispute the offender's entitlement to a discount at the top of the range. It is accepted that the offender indicated an intention to plead guilty at the earliest opportunity.
The bulk of the offender's assistance resides in his future evidence at the committal and trial of his co-accused. In these circumstances, a discount of 60%, representing the utilitarian value of the offender's plea and his assistance, ought be applied to the sentence that is otherwise appropriate. Of that 60%, 30% is attributable to the offender's future assistance and 5% is attributable to the offender's past assistance.

Gattellari's Subjective Circumstances

The offender was born in Italy and migrated to Australia with his family at the age of four years. He became an Australian citizen. He has 5 surviving brothers who remain supportive of him. His parents died when he was about 20 years of age.
The offender is presently 63 years of age and has been married 35 years. He has three children aged between 30 and 25 years of age. He has a close relationship with his wife and children, all of whom remain supportive and visit regularly, with the exception of the middle child who lives interstate. The publicity surrounding the offender's arrest caused a degree of emotional and financial stress to the offender's family.
The offender left school at the age of 14 years to work in the family fruit shop. He then undertook an apprenticeship with a fashion photographer, later worked as a copy boy for a newspaper and then as an articled clerk for a solicitor. He has also worked as a flight steward and was called up for National Service. He became a professional boxer and retired as the holder of the Australian featherweight title. He has been largely self-employed in his later working life. For a period of time he owned and ran a function centre and a winery.
The offender has otherwise lead an exemplary life. The number and quality of testimonials provided on his behalf, together with the evidence from his brother and other family and business acquaintances, confirm his contribution to his community through charitable works and his generosity of spirit towards others less fortunate than himself. This evidence of good character stands in sharp contrast to the criminality inherent in the offender's involvement in a murder.
The offender stated that he had suffered from anxiety associated with claustrophobia from a young age and would often abuse alcohol. The offender's wife confirmed that the offender's use of alcohol increases dramatically when he is stressed and that he had developed a tolerance to alcohol. Since his arrest he has benefited from psychiatric consultations and is currently prescribed an antidepressant. The offender also suffers from a number of other minor illnesses, including gout, haemorrhoids, tinnitus, arthritis and diverticulitis. He has appropriate medications for these complaints.
The various psychiatric reports tendered on sentence indicate that the offender's anxiety disorder has been exacerbated by his incarceration in the Special Purpose Centre of Long Bay gaol. The offender did not request protection, although he accepts that it is an inevitable consequence of his offer of assistance. Dr Nielssen in his report of 3 February 2013 states that the offender would be eligible for transfer to a lower security setting after he has completed giving evidence in the matter. That opinion appears to me to be consistent with current correctional practice. However, as Exhibit K makes clear, it is not possible to speculate when the offender might be removed from protection. To the extent that the offender ought receive some allowance for conditions of custody that are far more arduous than those experienced by the general prison population, that allowance applies in respect of the period since the offender's arrest and extends at least for a number of years into the future. It is a factor that is already reflected in the quantification of the discount for assistance.
The offender has expressed his contrition and remorse for the offence both to the Probation and Parole officer and in the course of his evidence during the proceedings. To the Probation and Parole officer he claimed that :-

during the commission of the current offence he believed that his involvement was 'minuscule'. He justified his actions, stating that at the time of the offence he felt pressured by misguided loyalty and he believed that he could convince Mr Medich to change his mind if given sufficient time. He reported that he was unaware of the reality of his actions until after the victim was killed. Mr Gattellari stated that he continues to have difficulty coming to terms with the way in which the victim was killed. ... Despite Mr Gattellari stating that there was no financial gain from his involvement in the current offence, he acknowledged that his involvement ensured an ongoing business relationship with Mr Medich.

The latter part of this passage confirms the conclusions I have reached with respect to the offender's motives. It is difficult to accept that the offender was unaware that his actions were actively contributing to the deceased's death. I regard these statements as an attempt on the part of the offender to come to terms with his culpability. I accept however that his remorse is genuine.

Sentence (Gattellari)

But for the offender's past and future assistance, a sentence of 25 years' imprisonment is appropriate to the objective criminality of the offence, having regard to the offender's subjective circumstances. Applying the stipulated discount results in a sentence of 10 years' imprisonment. I decline to find special circumstances. A lesser non-parole period than that prescribed by the statutory ratio would be unreasonably disproportionate to the offence.
Fortunato Gattellari, you are convicted of the murder of Michael McGurk. You are sentenced to a non-parole period of seven (7) years and six (6) months to date from 13 October 2010, expiring 12 April 2018. The balance of term expires 12 October 2020. You are eligible for release on 13 April 2018.

The Basis of Kaminic's Liability, the Objective Gravity of the Offence and Assistance

The criminality of the offender Kaminic stands to be assessed on a charge of accessory after the fact to murder on the basis of the following conduct :-

Acting as a go-between at times for Gattellari and Safetli, thereby allowing Gattellari to remain at arms length from Safetli.

Secreting and then returning Gattellari's gun to Safetli, thus attempting to remove any association between Gattellari and Safetli.

Obtaining the final payment of the contract money from Medich at the request of Gattellari.

At regular intervals and over a period of months, passing on the contract money to Safetli at the request and direction of Gattellari, knowing that it was payment for the murder of the deceased and associated activities.

Assisting Gattellari at his request and direction in attempting to convince Safetli to assume sole responsibility for the murder of the deceased in return for financial assistance to Safetli's family, thereby seeking to remove suspicion from Gattellari and Medich.

It is apparent from the account of the offender's activities set out above that he was aware of the plan to murder the deceased long before it took place and that he took an active part in attempting to intimidate Mrs McGurk following her husband's murder. In that regard, the offender was indemnified by the Attorney-General on 5 July 2012 with respect to the charge of murder, accessory before the fact to murder and intimidation of Mrs McGurk. Accordingly, the offender's criminality for the purposes of sentence is confined to his activities post-dating the murder.
For these reasons, the objective criminality of the offence to which the offender pleaded is significantly different and of a lesser order than that of Gattellari. It is clear that Kaminic acted almost entirely at the direction of Gattellari and with the aim of protecting Gattellari as far as possible from any liability arising out of the murder of McGurk. In this respect, the offender's participation was integral to assisting Gattellari, and through him, Medich, in avoiding arrest and prosecution for the offence of murder.
That said, the offender did not provide the services he did in a spontaneous effort to prevent Gattellari's and Medich's arrest for the murder. He knew of the murder and the circumstances of its commission and he systematically set about covering the tracks that might have lead from Safetli to Gattellari and to Medich. Accepting that assistance in the disposal of a body generally signifies a high level of objective gravity, this offence falls below the upper range of objective gravity but not by much.
The offender offered to assist the authorities immediately following his release to bail on 18 November 2010. He had remained in custody since his arrest on 13 October 2010. His assistance is of a similar order to that of Gattellari, in that it appears he has co-operated fully in disclosing all that he knows, including linking Medich, Safetli and Estephan with the murder. The assistance in the form of the statement he has provided to police may not be as voluminous as Gattellari's but that is a function of Kaminic's lower rung on the nominal hierarchy. The preponderance of his assistance is yet to be provided by way of evidence at committal and trial of the co-accused. He has already assisted the ICAC by giving evidence and disclosing information that has assisted in new and ongoing investigations.
The application of the discount for assistance is predicated on a sentence of full-time imprisonment. It is urged upon the Court by the offender's senior counsel that a penalty less than full-time imprisonment ought be imposed in the particular circumstances of this case. In order to deal with this submission, it is necessary to turn to the offender's subjective case.

Kaminic's Subjective Circumstances

The offender was born and raised in a village in the former Yugoslavia. He is presently 45 years of age. He has no criminal history. He and his family identified as Herzegovinian, from the southern region of former Yugoslavia. His parents identified as Muslim even though they were not practising. He was one of five children in a family which was financially constrained. His father mainly worked in Germany for about six years during the offender's childhood in order to support the family. He was raised on a farm almost exclusively by his mother, with whom he enjoyed a close relationship.
Following the outbreak of ethnic conflict in the early 1990s, the offender was exposed to significant trauma and witnessed a number of atrocities over the course of the Croatian and Bosnian wars. He was captured as a civilian in 1993 and placed in a Croatian concentration camp over a four-month period. After his release from this camp, he went into hiding in a Croatian friend's home. He was eventually able to travel to Germany in November 1993 where he resided for two years and attempted to gain residency. The offender, his wife and young son emigrated to Australia as asylum seekers in December 1995.
The offender continued to experience psychological distress and symptoms of a post-traumatic stress disorder following his arrival in Australia. These psychological and physical health problems have persisted over the past 17 years. The offender's father died in 2004, compounding the offender's unresolved symptoms. The offender has been estranged from his brothers since about 2008 and is also now estranged from his mother.
He was educated to the age of 14 and then trained as a metal machinist until he was approximately 17 years of age. He completed one year of compulsory military training at the age of 19. He worked as a truck driver for approximately two years before the wars in Croatia made that work too dangerous. He struggled with obtaining and maintaining employment in Australia as a result of language difficulties, psychological difficulties and physical health issues. He studied English between 1998 and 2000 in Australia. He obtained a security licence in 2000.
As a result of obtaining the security licence, he began to work in security and debt collection and came into contact with his co-offender, Gattellari. The offender carried out infrequent debt collection services for Gattellari from around 2005. His longest period of full-time employment was for 21 months as Gattellari's driver from about mid-2008. He was available to Gattellari at any time of the day or night until he lost his driver's licence in March 2010. He has been unemployed and receiving a Centrelink disability support pension since mid-2010.
The offender has been diagnosed with post-traumatic stress disorder, a major depressive illness and an alcohol abuse disorder. This diagnosis largely arises out of the offender's exposure to war and the traumatic events of the Croatian Bosnian conflict. The offender's physical ailments consist of a genetic heart condition which results in an irregular heartbeat. The offender's incarceration in a concentration camp resulted in a significant loss of weight and other physical ailments affecting his back, neck and hands. He reports experiencing chronic pain.
The offender first consulted a psychiatrist in about 1997. He was prescribed psychotropic medication but had ceased taking medication in around 2000. The offender renewed his contact with his treating psychiatrist in mid 2010. He is currently medicated with an antidepressant and anti-anxiety drug which he finds helpful.
On being taken into custody, the offender was assessed as at risk of self harm. The Corrective Services records indicate that the offender was fearful of officers in uniform, reluctant to mix with other inmates, and his appearance was dishevelled and unwashed. He was fearful of having a shower because of his perceived vulnerability to attack. The offender reported visual and auditory hallucinations. It is accepted that the experience of custody weighs more heavily on the offender because of the association with the offender's experiences as a prisoner of war. This is a factor which is to be weighed in the sentencing exercise in addition to the likelihood that any further period of custody will necessarily be served in protection, with the consequent hardship that that status entails.
The offender did not give evidence on sentence. However, in the course of numerous consultations with psychiatric professionals, the offender explained his involvement in the offence in terms of his loyalty and sense of obligation to Gattellari. The offender has always considered himself a poor employment prospect. It is said that his capacity to exercise sound judgment in this context was compromised by his poor psychosocial functioning and his reliance upon Gattellari as a friend and employer.
The offender expressed his remorse for his involvement to his family members, consulting psychiatrists and psychologists. The quality of that remorse is difficult to determine in the absence of evidence from the offender.
A number of testimonials from members of the offender's family and friends confirm that the offender is a person of good character who has experienced a great deal of hardship in the course of his life. They speak of the dramatic change wrought in his appearance and personality by the experience of custody.
It may be accepted that the offender's history and all of the afflictions from which he suffers go some way towards explaining his participation in the events following the murder. Yet it is an unsatisfactory explanation in some respects because the offender's aversion to violence (according to the testimonials and psychiatric reports) does not sit easily with the course of conduct underpinning the offence, particularly when these activities were carried out in the knowledge that a man had been gunned down in cold blood in the presence of his son.
I am not persuaded that the offender's subjective circumstances can stand in the way of appropriate punishment, which can only be a sentence of full- time imprisonment. The structure of that sentence will however take account of the offender's particular vulnerabilities in the context of protective custody.
Before passing to a consideration of the extent of the discount to be applied in order to reflect the factors in s 23(2) of the Crimes (Sentencing Procedure) Act 1999, it is pertinent to note that the provision of the indemnity to the offender notionally comes within the meaning of "benefit" in s 23(2)(f). The offender's senior counsel referred the Court to R v Bourchas [2002] NSWCCA 373 at [111] in support of the submission that the indemnity was of little or no relevance in the quantification of the discount, for the reason that the motive for the assistance is not the focus of the exercise.
Bourchas did not grapple with the terms of s 23. Leaving that to one side, I have determined that there is no evidentiary basis upon which it can be concluded that the offender was granted an indemnity "by reason of the undertaking to assist". The offender provided his undertaking to assist on 11 February 2012, whereas the indemnity was granted five months later. An inference may be available that the latter was granted because of the former, but it is no more than that.
The offender is entitled to the full discount for his early plea of guilty. The discount for his past assistance is assessed at 5%, while the discount for his future assistance is assessed at 20%. A combined discount of 50% applies to the sentence to be imposed.

Sentence (Kaminic)

But for the application of the combined discount, a sentence of 9 years' imprisonment ought be imposed. A finding of special circumstances is warranted in view of the offender's fragile psychological state. The non- parole period will also take account of a period of one month and four (4) days that the offender has already served.
Senad Kaminic, you are convicted of accessory after the fact to murder. I impose a non-parole period of two (2) years and six (6) months to date from today, 10 May 2013, expiring 9 November 2015. The balance of term is two (2) years expiring 9 November 2017. You are eligible for release on 10 November 2015.

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Decision last updated: 03 May 2018

Medium Neutral Citation:	R v Gattellari ; R v Kaminic [2013] NSWSC 1097
Hearing dates:	11, 12 February 2013
Decision date:	10 May 2013
Jurisdiction:	Common Law - Criminal
Before:	Latham J
Decision:	Fortunato Gattellari - Convicted of the murder of Michael McGurk. Sentenced to a non-parole period of seven (7) years and six (6) months to date from 13 October 2010, expiring 12 April 2018. The balance of term expires 12 October 2020. Eligible for release on 13 April 2018 Senad Kaminic - Convicted of accessory after the fact to murder. Sentenced to a non-parole period of two (2) years and six (6) months to date from today, 10 May 2013, expiring 9 November 2015. The balance of term is two (2) years expiring 9 November 2017. Eligible for release on 10 November 2015
Catchwords:	SENTENCE - guilty plea to accessory before the fact to murder (Gattellari) - guilty plea to accessory after the fact to murder (Kaminic) - top of the range of objective gravity (Gattellari) - exceptional nature of assistance provided to authorities - discount at top of the range - no finding of special circumstances - below the upper range of objective gravity (Kaminic) - exceptional nature of assistance - finding of special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Bourchas [2002] NSWCCA 373
Category:	Sentence
Parties:	Regina - (Crown) Fortunato Gattellari - (Offender) Sena Kaminic - (Offender)
Representation:	Counsel J Pickering SC - (Crown) A Bellanto QC - (Offender) H Dhanji SC - (Offender) Solicitors Solicitor for Public Prosecutions - (Crown) Wyndham Prem Commercial Lawyers - (Offender) William O'Brien & Ross Hudson Solicitors - (Offender)
File Number(s):	2010/339801, 2010/339798