R v Haile

[2016] NSWSC 1732

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Haile [2016] NSWSC 1732

Hearing dates:

22 February-9 June 201611 November 2016; 2 December 2016

Date of orders:

09 December 2016

Decision date:

09 December 2016

Jurisdiction:

Common Law - Criminal

Before:

RS Hulme AJ

Decision:

Up to the time of the conclusion of the trial of the co-accused listed to commence on 7 August 2017 or further order, as an incident of any publication of these remarks there be no naming of, or reference to, the co-accused or to the Prisoner having been involved a joint criminal enterprise;

 Up to the time of the conclusion of the trial of the co-accused listed to commence on 7 August 2017 or further order, there be no publication of the fact of application by the co-accused for non-publication orders, or of the proceedings consequent thereon, or to any of the details of the preceding paragraphs (paragraphs 1 – 7) of these reasons; 

The full terms of the orders are set out in the judgment.

 

I grant liberty to any person to apply in respect of those orders.

 Imprisonment for a non-parole period of 24 years commencing on 5 November 2013 together with a further term of 8 years imprisonment. Record as the date upon which it appears to the Court that you shall become eligible for parole, 5 November 2037

Catchwords:

CRIMINAL LAW - Sentence – murder - unusual motive

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Category:

Principal judgment

Parties:

Regina
Daniel Haile

Representation:

Counsel:
Mr D Patch (Crown)
Mr E Ozen (Prisoner)

  Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Benjamin & Leonardo (Prisoner)

File Number(s):

2013/334195

Publication restriction:

Yes

Judgment

1. During the sentencing proceedings in this matter the Crown submitted that it would be preferable if I made a non-publication order in respect of these proceedings, the basis for that submission being that a retrial of the second accused and the other of Mr Haile’s co-accused is listed to commence on 7 August 2017. Subsequently the Crown resiled from this stance but similar applications were made on behalf of two of those who were Mr Haile’s co-accused. Having received advance notice of what was sought in this regard, arrangements were made for the applications to be argued on 2 December last.

2. On behalf of Ms Spiteri-Ahern, the person who was the second accused in the trial before me, the order sought was to the effect:-

An order prohibiting the publication of any finding of fact as to the involvement of the second and third accused in the death of Raymond Pasnin.

3. On behalf of April Barber, the person who was the third accused in the trial before me, the orders sought were to the effect:-

An order be made under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the name of the Applicant, the third accused, be suppressed in the judgment of sentence in the proceedings against Daniel Haile.

An order be made under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that a non-publication order be made in respect of the name of the applicant, the third accused, in relation to the proceedings against Daniel Haile.

4. It is not necessary that I set out the relevant terms of the Act mentioned. A Court is entitled to make an order if it is necessary to prevent prejudice of the proper administration of justice or it is otherwise necessary in the public interest for an order to be made and that public interest significantly outweighs the public interest in open justice.

5. The principal focus of my remarks on sentence are the actions and circumstances of Mr Haile and while the orders sought impinge to some degree on the first of these, that impingement is only to a limited extent. Hence, the orders sought will, if made, interfere with open justice to only a very limited degree.

6. Certainly, some of the remarks I intend to make do bear on the guilt of one or other of Mr Haile’s co-accused and it would be undesirable for any jurors in their trial be made aware of those remarks. The decisions of those jurors should be made on the basis of their appreciation of the evidence put before them, not on the basis of my conclusions.

7. While the fact that the trial of Mr Haile’s co-accused is some 8 months away is calculated to greatly reduce the possibility that anything I say that is reported will be remembered the possibility remains. Particularly is this so because of the unusual facts of the case and, to some degree, because of the uncommon name of the second accused before me. In these circumstances I regard the preconditions for the making of a non-publication order as made out.

8. However, it seems to me that an order in terms somewhat different from those terms sought is more appropriate. Accordingly I order that:-

Up to the time of the conclusion of the trial of Ms Spiteri Ahern and Ms Barber listed to commence on 7 August 2017 or further order, as an incident of any publication of these remarks there be no naming of, or reference to, Ms Spiteri-Ahern, April Barber or Amin Zreika or to the Prisoner having been involved a joint criminal enterprise;

Up to the time of the conclusion of the trial of Ms Spiteri Ahern and Ms Barber listed to commence on 7 August 2017 or further order, there be no publication of the fact of application by Ms Spiteri-Ahern or April Barber for non-publication orders, or of the proceedings consequent thereon, or to any of the details of the preceding paragraphs of these reasons;

I grant liberty to any person to apply in respect of those orders.

9. On 6 June 2016 Daniel Haile was convicted of having murdered Raymond Pasnin on 30 October 2013. It now falls to me to sentence Mr Haile. I instruct myself that any conclusions at which I arrive must be consistent with the jury verdict, that I must be persuaded beyond reasonable doubt of any matters adverse to Mr Haile and not inherent in the jury’s verdict but that matters favourable to Mr Haile need only be proved on the balance of probabilities.

10. Mr Pasnin died as the result of a bullet wound, the bullet entering his body from the left back, passing through his aorta and finishing up in the front right part of his abdomen. The shooting occurred at about 11.45pm in the car park of a block of units in a Sydney suburb. I am satisfied that Mr Haile’s movements in the hour or so before the shooting were as described by Tom Jones (a pseudonym) who said that he drove Mr Haile to the scene, that after a little while the latter returned to Tom Jones’ car and said that he had seen a male with a child but was not sure whether that was the right person. The two returned to or adjacent to where Mr Jones had picked up Mr Haile where Mr Haile made a phone call and then, apparently having had the proposed victim’s identity confirmed, returned to the car park and, as Ms Archbold and Mr Pasnin walked to their car, shot Mr Pasnin.

11. Mr Jones also gave evidence of statements made to him by Mr Haile during the evening. I accept this evidence.

12. At his trial, Mr Haile acknowledged shooting the deceased but asserted that this occurred in circumstances of self-defence following the production by the deceased of a gun in the course of what Mr Haile asserted was proposed to be a sale by Mr Haile to Mr Pasnin of some 2 ounces of ice. The claim of self-defence was rejected by the jury as I also would reject it.

13. Significant in that connection is that Mr Haile seems not to have said to Mr Jones or to a Mr Pehar when recounting the events of the night anything to the effect that he had shot the deceased in self-defence or that the deceased had tried to attack him. I am not unconscious of the fact that in his evidence Mr Haile did assert when travelling from the scene of the shooting back to Coleman Street, he had said to Mr Jones that the deceased had a go at him, - “the prick tried to get me”. However, no suggestion of any such statement had been put to Mr Jones when he was being cross examined and I have no confidence in Mr Haile’s evidence on this (and many other) topics.

14. Relevant also was the evidence of the deceased’s then girlfriend Lyndal Archbold who was a witness to the shooting. Her evidence was not entirely satisfactory, inter alia, because at the trial she claimed, for the first time, that there had been two sets of shots and also because she purported not to have immediately recognised Mr Haile although he was seen by her in a lighted stairwell and had sold her cannabis earlier in the day. However I accept her evidence that the shooting occurred as she and the deceased proceeded from a stairwell in the direction of her car and that there was no meeting or discussion between the deceased and Mr Haile in the car park prior to the shooting.

15. In that connection, I should refer to a submission by Mr Ozen on Mr Haile’s behalf to the effect that a significant number of neighbours gave evidence of scuffling and yelling in the car park before shots were fired. Certainly a Ms Krausmann talked of being woken by the sound of scuffling before hearing shots but almost all of the neighbours gave evidence that the shots were the first thing they heard - Mr Merhi (at T457), Mrs Orya (at T480), Ms Orya (at T492), Ms Hallowran-Barrow (at T502), Mr Crowther (at T528). While, in the case of some of these persons, sleep may have been a reason for hearing nothing prior to the shots, in the result I am disposed to accept the substance of Ms Archbold’s account to the effect that there was no altercation before the shots.

16. I should mention that there was tendered during the sentencing proceedings a disc containing the results of a CCTV recording of some of the events in or adjacent to the car park on the night of the shooting. Objection was taken to the admissibility of the recording on the ground that what is depicted is very unclear, lacked probative value and created a risk of prejudice. Rather than take the time necessary to evaluate the recording during the sentencing hearing I admitted it subject to objection and indicated that I would treat a related chronology, and any similar document from the Prisoner’s counsel as an aide memoir. In due course Mr Ozen forwarded a corresponding document.

17. Having reviewed the contents of the disc I agree with the following entries in the Crown’s summary of what the disc appears to show:-

22.47.47   Person enters doorway 1

22.49.09   Person exits doorway 1

22.52.14   Reflection of headlights

22.54.22   Person exits doorway 1

22.55.25   Person walks across doorway 1 and doorway 2

22.56.51   Person enters doorway 1

23.49.20   Person enters doorway 1

23.50.26   Person exits doorway 1 and turns immediately to his/her right and moves, out of the light, towards the rear of complex

23.50.26   2 people exit doorway 1 and walk to their left, towards street, where the car of the deceased and Ms Archbold was parked

23.50.34   Person moving quickly, across the light of doorway 1, toward where the 2 people just walked.

18. The times referred to are 46 minutes later than depicted on the recording, this being a matter that seems to have been conceded by Mr Ozen not putting the provenance of the CCTV footage in issue. The movements described do tend to support the version of events in the car park given by Ms Archbold.

19. However it should also be mentioned that the recording is very unclear and in addition to the movements just mentioned there appear to be a number of other movements, or at least changes in light intensity, within the foyer beyond the doorway. That said, there is nothing in evidence to suggest that those matters are of significance in any resolution of the differences between the evidence of Ms Archbold and Mr Haile.

20. Mr Ozen conceded that the Crown was entitled to adduce further evidence. In the result my conclusion is that the CCTV footage is probative, does not create a risk of prejudice and is therefore admissible. But even without the CCTV footage, in light of the jury’s rejection of Mr Haile’s claim of self-defence and in accordance with other similar views, I am disposed to accept the substance of Ms Archbold’s account of when and in what circumstances the shooting occurred.

21. Mr Haile’s evidence of past association with the deceased and cultivation of him with a view to the deceased becoming one of Mr Haile’ runners also suffers from the disadvantage that on 30 October 2013 Mr Haile needed confirmation of the deceased’s identity. I accept that there was some such association but I am persuaded it was not of the extent that Mr Haile alleged,

22. I am also conscious of the argument that there is some inconsistency between my approach to Ms Archbold’s lack of recognition and that of Mr Haile. However, according to Mr Haile, he went to the premises looking to meet someone whom he said he knew and thus could be expected to have been more attuned to recognition than Ms Archbold.

23. Although some mention by the deceased’s mother in the course of her police interview of the deceased going to meet a “friend” was not explained in the evidence, I am also disposed to accept Mr Archbold’s evidence that she knew of no such planned meeting. Given her evidence of the relationship between the deceased and herself, it is also almost inevitable that she would have been aware of such a meeting if it had been planned. There remains also unexplained what would seem to have been at least in part the coincidence of the deceased and Mr Haile both being in the car park at the time of the shooting and later than the time when the child to whom I have referred was picked up. While recognising that fact, neither alone, nor in combination with other evidence does it cause me to doubt the evidence of Mr Jones who impressed me, or that of Ms Archbold as to the events in the car park.

24. One issue which requires consideration is what did or may have motivated Mr Haile to shoot the deceased. I am satisfied that prior to the shooting there was no significant relationship between Mr Haile and the deceased which could account for the murder. It is probable that in addition to the cannabis sale on 30 October to which I have referred the deceased and/or Ms Archbold had purchased small quantities of cannabis from Mr Haile on earlier and irregular occasions. However I accept Ms Archbold’s evidence that drug purchases were not more significant. I accept also her evidence that she and the deceased sought to avoid the deceased breaching his bail conditions by ensuring any purchase of drugs they desired was effected by her and not the deceased. I do not ignore Ms Archbold’s evidence concerning a Beretta but the evidence just referred to also argues, even if only slightly, against the deceased breaking his bail conditions by carrying a firearm. Although I do not ignore the terms of some messages in evidence I reject Mr Haile’s evidence about a much more significant drug dealing arrangement or history with the deceased.

25. The Prisoner was tried contemporaneously with three other accused. The second accused was charged with murder and, in the alternative, with soliciting Mr Haile to murder Mr Pasnin. The third accused was charged with being an accessory before the fact to the murder by Mr Haile and the second accused. The charge against the fourth accused was of, without reasonable excuse, concealing the serious offence which the Crown alleged had been committed by the third accused.

26. The jury retired to consider its verdict against the Prisoner and the second accused on 20 May 2016. On 6 June it returned a verdict of guilty against Mr Haile and on 9 June advised that it was unable to deliver a unanimous verdict against the second accused. (Because the number of jurors had been reduced, a majority verdict was not an option.) I then discharged the jury from any obligation to further consider the case against the second accused and from any obligation to consider the case against the third and fourth accused.

27. The Crown case was that Mr Haile had shot the deceased at the instigation of the second accused, one of the deceased’s previous partners, and in return for payment of a sum of $4,000. There can be no doubt that at about the end of 2012 and the beginning of 2013 that second accused had very strong feelings towards the deceased and that those emotions were volatile, varying from love to hate. Following what may well have been a well justified complaint by her, the deceased was incarcerated for some months up to August 2013 in consequence of an assault and/or breach of an apprehended violence order in her favour. During the early months of this incarceration the deceased’s family, probably with his collaboration, engaged in a trick to induce the second accused to believe that he still loved her, thereby hoping she would change the statement she had made to police so as to procure the deceased’s release from prison. It would seem that the second accused became aware of this trick in about May 2013. There is Iittle or no evidence as to her reaction to this discovery but so far as one can judge from her feelings earlier in the year, it is certain that she would have been very upset.

28. It was suggested that prior to the deceased’s death, the second accused had “moved on” from the deceased and while there was some evidence to indicate the formation of affection towards others, I am not persuaded that there was or would have been a marked decrease in her antipathy towards the deceased.

29. There was a deal of evidence bearing on the relationship between the second accused and Mr Haile. They were both dealing in drugs although the second accused would seem to have been working for another branch of the syndicate of which Mr Haile was a member. They sometimes partied together and the second accused allowed the use of her credit card as an incident of the booking of hotel rooms by or on behalf of Mr Haile (who chose not to have such a card himself). I am disposed to accept Mr Haile’s evidence that he repaid any debts so incurred in cash. However, while the evidence is clear that he and the second accused seemed to have been in a very friendly relationship, the evidence is also clear that the friendship or relationship was not deep enough of itself to inspire the killing. Indeed the Crown disclaimed the suggestion that the Prisoner shot the deceased as a favour to the second accused although submitting that $4,000 may well have been enough in the context of their relationship.

30. That said, phone records put beyond doubt that when seeking and obtaining confirmation of the identity of the person at 257 Dunmore Street he was looking for on the night of the murder, Mr Haile rang the second accused.

31. On 1 November 2016 Mr Haile requested a Mr Pehar to contact the second accused and tell her that he needed his money “today”, identifying the amount as $4,000. Some time later Mr Haile was paid this sum by Mr Pehar, as Mr Haile assumed, on behalf of the second accused. Mr Haile maintained that this was repayment of a loan he had made to the second accused though my views as to Mr Hailes’ credibility have the result that I do not accept that evidence. The $4,000 certainly may have been, at least part of, Mr Haile’s motivation.

32. Part of Mr Haile’s defence was that he was a very successful drug dealer who did not need $4,000 and would not have killed anyone for that sum. I accept the first part of this proposition and there is clearly strength in the argument but equally there was on the evidence no other explanation for Mr Haile’s assassination of the deceased.

33. Once the self-defence plea is rejected, there is no evidence from Mr Haile or anyone else and going beyond that to which I have referred which bears on Mr Haile’s motive. I am satisfied that the shooting of the deceased was the result of a joint criminal enterprise between, at least, the second accused and Mr Haile but I am not able to be persuaded beyond reasonable doubt of Mr Haile’s motive. I am however satisfied to that standard that his offence is not explicable by reference to the “normal” human emotions that inspire murder, of which jealousy, hate, anger, love, or revenge are examples.

18. His motive may, as I have said, have been or included, the $4,000 to which I have referred but whether it did or not, I regard a motive other than the ones which may be considered as “normal” or understandable by reference to usual human experience in this area as an aggravating factor. Such a motive is calculated to make the individual offence more heinous and to place a premium on deterrence, retribution and the protection of the community.

19. The Crown case was that the deceased’s presence at the car-park during the late evening was orchestrated by the third accused who had arranged to pick up a child of which they were the parents at that time and place. There is a great deal of evidence in support of this submission but I do not need to make any finding in respect of it.

20. Mr Haile’s antecedents report records that he was born in April 1987. In May 2011 he was sentenced to imprisonment for 17 months for possessing an unauthorised pistol. Taken into account were offences of possessing ammunition without a licence, being in possession of goods suspected on having been stolen and driving or possessing a vehicle with an unauthorised number plate. In December 2013 he was given a 2 year bond for supplying a prohibited drug. The supply and charging in respect of that offence occurred in February 2013 so he must have been on conditional liberty at the time of the murder.

21. A deal of the evidence as to Mr Haile’s subjective circumstances was contained in a report from a Sam Borenstein, clinical psychologist. According to that report Mr Haile was born in Ethiopia and arrived in Australia when about 5 as a refugee, thereafter living in Auburn with his mother and sister. He reported being bullied and socially isolated at school. He completed year 12 but told Mr Borenstein that his results were “not good”. He commenced but did not complete a Personal Training course at TAFE. He told Mr Borenstein that he worked at Woolworths for 12 months and there suffered a back injury. Mr Borenstein’s report continues, “He was recipient to workers’ compensation and he has not been able to gain suitable employment since sustaining the back injury” but provides no further details in this regard (sic). According to Mr Borenstein’s report, consequent on that injury Mr Haile continued to suffer back pain and depression.

22. As an incident of his drug dealing Mr Haile suffered a serious bashing in early 2013 and reported to Mr Borenstein behavioural changes, dreams, nightmares, difficulties with concentration, memory and motivation which he attributed to the bashing. As I have indicated the depression may well have preceded this bashing.

23. Mr Borenstein recorded also that Mr Haile was a “vague historian with respect to both chronology and providing detail”. When asked what TAFE he had attended, Mr Haile was vague, saying “in the city somewhere”. Mr Borenstein remarked that Mr Haile’s presentation was odd and at times bizarre and recorded that he had observed what he described as “choreiform movement throughout the assessment, with head held downward, and voluntary movements to his upper body”.

24. Mr Borenstein twice referred to these movements being “voluntary” although later observing, “I am concerned about involuntary choreiform type movements, possibly a product of medication (Seroquel) or extensive neurological causes”.

25. Mr Borenstein recorded that prior to his incarceration Mr Haile was consuming cocaine and marijuana several times a week and that Mr Haile reported perceptual disturbance in the form of auditory and visual hallucinations, paranoid thoughts and ideas of reference” and observed that Mr Haile impressed as having a “serious psychiatric/psychological disorder” and made a provisional diagnosis of “Major Depressive Disorder with Psychotic Features”. Mr Borenstein said that Mr Haile’s psychiatric disorder had worsened since coming into prison and opined that Mr Haile required further intensive psychiatric/psychological assessment and treatment and his medications needed to be reviewed. In his report Mr Borenstein did not address the issue of to what extent Mr Haile’s ingestion of illegal drugs may have impacted on him.

26. In response the Crown tendered a report of Dr Olav Nielssen, psychiatrist who listed five psychiatric diagnoses:-

1.   Substance use disorder, in long term remission;

2.   Anxiety disorder (post traumatic stress disorder);

3.   Possible emerging psychotic illness;

4.   Possible obsessive compulsive disorder, and

5   Possible traumatic brain injury.

43. Many of Mr Borenstien’s remarks and observations are at odds with the impression Mr Haile created when giving evidence in his trial. That evidence extended over much of 6 days and demonstrated an appreciation of the questions, no significant difficulty with his memory or concentration, no holding of his head downwards, no choreiform movements, voluntary or involuntary and no odd or bizarre presentation. His evidence as to the steps taken as incidents of his drug-dealing activities showed a significant degree of care and initiative. Examples in this regard are keeping money and drugs separate and at different premises, and, when engaged in activities likely to result in lengthy prison sentences if caught, wearing a second set of clothes so that, after running, he could change his appearance. The fact that, as the Crown established, the methodology was not perfect, does not demonstrate a lack of initiative.

44. Nor did Mr Haile exhibit any odd behaviour during the sentencing proceedings. It is impossible to avoid the conclusion that little if any reliance can be placed on Mr Haile’s actions and statements to Mr Borenstein.

45. Given the extent of the history recorded by him and in annexures to Mrs Haile’s affidavit, the totality of Dr Nielssen’s diagnoses is not so easily dismissed. Dr Neilssen also recorded the back injury apparently suffered at Woolworths in 2006 and that Mr Haile said that he suffered back pain and depression thereafter. Reference was also made to a pistol whipping in January 2013 and which required the insertion of a plate in Mr Haile’s head and led to migraine headaches due to lack of sleep and depression. This was followed by a car accident in April 2013. Dr Nielssen then refers to Westmead Hospital notes which appear to have followed suicide threats and a provisional diagnosis of an adjustment disorder with depressed mood. Justice Health records of November 2013 record Mr Haile denying symptoms of psychotic illness and to be organised and appropriate in his verbal responses. Later, particularly in 2015, Mr Haile has reported suffering from PTSD, obsessive compulsive disorder, hearing voices and experiencing hallucinations. Dr Nielssen also reported that Mr Haile was vague in a number of respects and repeating complaints out of context at times and mentioned a diagnosis of chronic kidney disease.

46. A report from a Dr Obeid dated 25 July 2016 annexed to Mrs Haile’s affidavit concluded with the statements that:-

(Mr Haile) was showing periods of low esteem, mood swings and depression as well as physical pain and disability.

He requires a mental health re-assessment and intensive treatment. He requires effective pain management therapy and vocational training in a field of interest according to his physical disability.

47. Relevant to an assessment of some of the reports is the fact that the 2013 bashing and subsequent hospitalisation and treatment was the subject of questioning during the trial. Mr Haile said that this incident and a subsequent car accident put him out of action for a period but that within two or three weeks after the latter event he was able to ensure that his drug business was working properly. The bashing did not lead him to conclude that the continuation of his drug dealing was dangerous.

48. It must be recorded that in my view Mr Haile’s credibility was effectively destroyed during his evidence. The most striking example of this was provided by his evidence concerning the purchase of an Audi motor vehicle. As an incident of seeking to demonstrate no need for the $4,000 relied on by the Crown, Mr Haile gave evidence of the purchase by him of an Audi RS6 Avant car, second hand, for around $125,000. He gave details of having been present when the car was previously purchased new from Audi in Church Street, Parramatta by another member of his syndicate whose name he was unwilling to disclose, of the picking of the colour, the wheels, a performance upgrade, the addition of ceramic brakes and other extras. Mr Haile said that the list price for a new RS6 Avant in 2013 was $236,000 and his friend paid $253,000 for the car.

49. Later Mr Haile gave evidence of being in the car with a girlfriend in October 2013 when she was pulled over by police and booked for driving without her Ps and for driving a high performance vehicle. Exhibits provided further evidence of this incident including that the vehicle involved was an Audi S4

50. Told in the witness box that police had the details of the car, Mr Haile confirmed that it was this car that his girlfriend was driving when pulled over and that what he owned was an S4. Mr Haile said that an S4 and RS6 look the same and reiterated that the vehicle purchased had ceramic brakes.

51. In reply, the Crown called a Mr Chamberlain, the manager of the Parramatta Audi dealer. Mr Chamberlain confirmed that an RS6 Avant cost some $250,000 odd but said that no RS6 Avant had been sold by that dealership in 2011, 2012 or 2013. Furthermore, Mr Chamberlain said that ceramic brakes were not available on an S4.

52. I have no hesitation in accepting Mr Chamberlain’s evidence. In the face of it, it is clear that Mr Haile’s evidence about the transaction was wrong. I also find it impossible to conclude otherwise than that some of the details he provided were consciously made up.

53. Mr Haile’s choice of occupation, his previous convictions for being in possession of goods suspected of having been stolen and driving or possessing a vehicle with an unauthorised number plate and his decision to arm himself with a second set of clothes in order to avoid police also lead me to the view that I would not readily accept anything Mr Haile said that was in his interest. Furthermore, his current situation – facing decades in prison – is enough to inspire a considerable degree of depression. His previous lifestyle – notwithstanding a deal of partying and female company – had much of the inherently unsatisfying about it.

54. Questions then arises how much of Mr Haile’s complaints to the health professionals, to whom I have referred, can be accepted and what significance they have in the determination of the appropriate sentence.

55. Despite my reservations, I think it probable that Mr Haile is likely to continue to experience a degree of depression although I am not persuaded that this will not be amenable to medication or other medical care. I accept also that he continues to experience some degree of back pain. However, I am not persuaded any condition from which Mr Haile suffers will make his time in prison more difficult to any significant degree. There is nothing to suggest any condition from which Mr Haile suffered effected any reduction in his reasoning capacity at about the time of, or otherwise contributed to, the shooting.

56. Although no application was made under s 28(4) of the Crimes (Sentencing Procedure) Act 1999, also tendered during the proceedings on sentence were victim impact statements by Ms Archbold and a number of the deceased’s relatives. Those statements help to bring home the suffering to persons other than the primary victim that offences of the nature of that carried out by Mr Haile impose and I have no difficulty in accepting that the authors of those statements have themselves suffered substantially. Without in any way minimising their loss, it is however proper to recognise that I do not see in the totality of those statements that the suffering of the deceased’s relatives (and Ms Archbold) has been greater than one would expect in many murder cases that come before this Court.

57. An affidavit from Mr Haile’s mother was also read. Mrs Haile and an annexure describe some personal health issues and assistance she received from Mr Haile but these matters are not of sufficient seriousness to be taken into account in mitigation. The affidavit also contains statements as to Mr Haile’s past employment and I accept there was some. However, the statement that “he has always been employed” is contrary to evidence the Prisoner gave during his trial. Furthermore, even if I accepted he had past employment as detailed in the affidavit, compared with the circumstances of Mr Haile’s offence and the other matters referred to in these reasons, that employment is, at most, of marginal relevance.

58. Attached to the affidavit also was the report of Dr Obeid concerning the medical history and condition of Mr Haile. In the main it provides some expansion of the detail contained in the reports of Mr Borenstein and Dr Nielssen but does not take the substance of those reports further.

59. The Crown submitted that in accordance with s 61 of the Crimes (Sentencing Procedure) Act, 1999 the community interest in retribution, punishment, community protection and deterrence in this case can only be met by the imposition of a sentence of imprisonment for life. The absence of any “normal” emotion by way of motivation for the shooting and the Prisoner’s amorality as demonstrated by his drug dealing argue in the direction urged by the Crown but I do not regard the Prisoner’s offence or his own circumstances as sufficiently heinous to satisfy the requirements of the section.

60. Putting s 61 aside, there remains s 19A of the Crimes Act 1900 which prescribes for murder a maximum penalty of life imprisonment. However, in accordance with s 21(1) of the Crimes (Sentencing Procedure) Act, such a penalty is not mandatory and general sentencing principles require a comparison of the instant offence with a case falling into a “worst” category. Given that in all cases of murder the victim has died, to those inexperienced in this field it may seem odd or perhaps grotesque to indulge in such comparison, but the law requires that it be done. And reflection leads to a realisation that there are differences between cases. Gratuitous cruelty, and death of a child at the hands of a parent are circumstances calculated to make an offence worse than if such factors are absent.

61. In this case the Crown has submitted that the Prisoner’s premeditation and intention to kill, the absence of any “normal” emotional cause and the fact that the Prisoner was motivated by money are factors arguing for the Prisoner’s offence being regarded at or close to the upper end of the scale.

62. Reliance was also placed on, as it was said,

The fact that the killing took place in the sight and hearing of the deceased’s loved ones and in the home of the deceased’s mother;

The offence was planned;

The use of a weapon;

That the offence involved a grave risk of death to another person or persons;

The offence was committed without regard to public safety; and

That the Prisoner was on conditional liberty at the time.

63. The offence clearly took place in the presence of Ms Archbold who was the deceased’s partner and tied by bounds of love towards him. Occurring as it did in the car-park of a block of units, I do not agree that in significant way the offence occurred in the home of the deceased’s mother. Given the closeness of Mr Haile to the deceased at the time of the shooting, I am not satisfied that there was a grave risk to another person or that that it was committed without regard to public safety, and this although one of the bullets seems to have finished up near a bedroom in a property across the road. A weapon was an integral part of the offence as committed and justifies no additional weight. The fact that the Prisoner was on conditional liberty, involving a promise to be of good behaviour, does.

64. There are some other matters that require further reference. In evidence initially Mr Haile said that he had been involved in selling drugs for 2 years prior to October 2013. Later he acknowledged that he and some friends started dealing whilst they were at school in 2005. Mr Haile added that the dealing was not difficult and they got better at what they were doing. His evidence as to the setting up a contact system which was referred to during the trial as the “Freddy number” which persons wishing to buy marijuana would call, the manner of dealing and where drugs and money were kept – “yu guys still haven’t found my other house” - certainly argues for a well organised operation.

65. Mr Haile’s primary role was selling, largely via runners, some 4-6 pounds of cannabis per week which yielded him profits of some $5000 a week. His “partners” were responsible for the sale of ice and cocaine and at least by the time of the shooting he was receiving $5,000 per week as a share of the profits from those activities. Thus by the time of the shooting Mr Haile was receiving by way of earnings from the drug operation a minimum of $10,000 a week.

66. Mr Haile’s attitude to ice became apparent in a few of his answers. He said “that marijuana … it’s not a hard, harsh drug as ice and ice is basically frowned upon and you get a very large lengthy sentence” and “Now, ice isn’t a drug that anybody likes. It destroys a lot of people’s lives and I wouldn’t want to be caught with it, seeing that my family would not be happy with me at all. And the lengthy period of time that you’d be incarcerated for it”.

67. Despite these views Mr Haile himself dealt in “large amounts of ice and significant amounts of cocaine on a regular basis” to some regular customers. Although it does not seem to me to matter for present purposes, having regard to evidence Mr Haile gave, that he was not competing with the syndicate it may well be that this dealing was on the syndicate’s behalf and this notwithstanding he said that the dealing was not as part of the syndicate.

68. During his cross-examination Mr Haile conceded that in 2013 or thereabouts he was receiving at least one Government pension.

69. A number of the matters that I have mentioned have only a limited relevance. I am sentencing Mr Haile for murder and not for any other offence. However his drug dealing and attitude to its features leads me to the conclusion that Mr Haile is completely amoral, does not accept the standards necessary for a decent society and, so far as one can draw conclusions about events decades into the future, his prospects of rehabilitation are virtually zero. His receipt of a pension at a time when he was otherwise “earning” thousands of dollars each week argues in the same direction as does the fact that he was on a bond to be of good behaviour at the time of the murder.

70. There is no evidence of remorse.

71. The Prisoner’s offence reflected a number of the aggravating features mentioned in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 – there was the actual use of violence and a weapon. However, these factors were integral parts of the offence as I have described it and I give them no additional weight.

72. I have referred to the maximum penalty for which Parliament has provided. Pursuant to s 54A et seq of the Crimes (Sentencing Procedure) Act 1999 a standard non-parole period of 20 years has been prescribed. That period is expressed to represent the non-parole period for an offence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness and, together with the maximum penalty prescribed, is one of the guideposts that the Court must take into account in determining upon a sentence.

73. Lest it be thought that the matter has been overlooked, I have considered whether there are any special circumstances in this case. I can see none. In any event I am satisfied that the non-parole period I intend to impose is the minimum period that Mr Haile should spend in prison.

63. Mr Haile was arrested on 5 November 2013 and has been in custody since. Accordingly his sentence should commence on that date. The Crown raised the issue of totality in consequence of the sentence, viz. a 2 years bond, imposed on Mr Haile for supplying a prohibited drug in February 2013. However the magnitude of any sentence I must impose is such that it seems appropriate to ignore that earlier sentence.

64. Daniel Haile, for the murder of Raymond Pasnin, I sentence you to imprisonment for a non-parole period of 24 years commencing on 5 November 2013 together with a further term of 8 years imprisonment. I record as the date upon which it appears to the Court that you shall become eligible for parole, 5 November 2037.

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Amendments

07 March 2017 - Names of co-accused removed from "decision" field on coversheet removed.

13 April 2023 - Publication restriction lifted.

Decision last updated: 13 April 2023