R v Hassan Kalache

[2002] NSWSC 507

CITATION:	R v Hassan Kalache [2002] NSWSC 507 revised - 09/07/2002
FILE NUMBER(S):	SC 70072/01
HEARING DATE(S):	11/02/02, 12/02/02, 13/02/02, 14/02/02, 18/02/02, 19/02/02, 20/02/02, 21/02/02, 22/02/02, 25/02/02, 26/02/02, 27/02/02, 28/02/02, 01/03/02, 24/05/02, 31/05/02
JUDGMENT DATE:	31 May 2002
PARTIES :	REGINA v Hassan KALACHE
JUDGMENT OF:	Dowd J

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	70072/01
LOWER COURT JUDICIAL OFFICER :	DOWD J

COUNSEL :	Crown Prosecutor- Ms Margaret Cuneen Defence Counsel - Mr Bruce Stratten
SOLICITORS:	S E O'Connor for DPP Nyman Gibson & CO for defence
CATCHWORDS:	Murder - Sentencing Principles - youth - no special circumstances
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Crump (unreported NSWCCA, 30 May 1994 R v Dodd (1991) 57 A Crim R 349 R v Ibbs (1987) 163 CLR 447 R v Poskart [2001] NSWSC R v Privett [2001] NSWCCA 518 R v Purdey (1993) 65 A Crim R 441 R v Rushby [1977] 1 NSWLR 594 R v Twala (unreported, NSWCCA, 4 November 1994) The Queen v Veen (No 2) (1987/88) 164 CLR 465. R v Zamagias [2002] NSWCCA
DECISION:	Sentence - twenty-two years imprisonment to commence 13 July 2000 and to expire on 12 July 2022, with a none parole period of seventeen years to expire on 12 July 2017

- 19 -

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

DOWD J

31 MAY 2002

70072/01

REGINA v Hassan KALACHE

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Hassan Kalache, pleaded not guilty on 12 February 2002, to one count on an indictment, presented against him, alleging that, on 1 July 2000 at Auburn in the State of New South Wales the offender did murder Wassim Chedade. A jury found him guilty on 1 March 2002, following which, submissions on sentence were received by the court on 24 May last.

2 The facts are that early in the evening of Saturday 1 July 2000 the deceased, Wassim Chedade, was at home in the company of his mother, three brothers and a friend, Hassan Yassine, at Granville. During this time the deceased had received several phone calls from the offender, following which, the deceased suggested to the others that they go out. At approximately 5.30pm, the deceased left of the house and travelled in the family car, with his two brothers Mohamed and Samir, who were fifteen and eighteen years of age respectively, and Yassine.

3 There was evidence presented in the trial that the offender and the deceased had known each other for many years, as they had grown up in the same area within the same cultural and ethnic group. They had been to school with each other and had often "hung around" in the same group.

4 The offender's evidence was that he had asked Wassim Chehade to pick him up earlier in the day. The deceased had in fact picked the offender up earlier that day at Yennora, where the offender had been with his brother, and brought him home.

5 The four young men headed to Mona Park at Auburn, from whence the offender had requested he be picked up. Samir Chehade drove the red Commodore sedan, the deceased sat in the front passenger seat, Mohamed Chehade sat behind the deceased, with Yassine behind the deceased. When they arrived at Mona Park there was no one present and, at the deceased's instruction, they drove off. Within a few minutes of doing so the deceased received a call on his mobile phone and he directed that they return to Mona Park.

6 When they arrived at Mona Park there were three men, the offender, Aimen Chami and Moustafa Abbas standing at the perimeter of the park, near the intersection of Mary Street and Chisholm Street. Samir Chehade parked the car in a parking bay on Mary Street adjacent to the park, whereupon the three men approached the car. Aimen Chami leant up against the perimeter fence of the park and thereafter took no part in the events which ensued.

7 The offender approached the passenger side of the car and said to the deceased:

"Wassim, let's go for a walk".

Initially the deceased was reluctant to get out of the car but after a short time he opened the door and stood up, whereupon Moustafa Abbas punched him in the face causing him to fall back into the car. Abbas punched the deceased again, and continued to punch the windows of the car, smashing the rear passenger window. He also kicked the panels of the car.

8 At this point the offender reached in the waist of his pants and pulled out a handgun, which he raised and pointed into the doorway of the car at an angle and commenced shooting at the deceased, discharging five bullets into the left side rear of the deceased's body. Samir Chehade drove off in haste as the offender continued to discharge rounds into, and in the direction of the car.

9 Samir Chehade drove his brother, Wassim Chehade, to the Emergency Department at Auburn Hospital where they arrived at approximately 6.30pm. On admission to the Emergency Department, medical staff at Auburn Hospital commenced resuscitation on Wassim Chehade, as he presented with severe breathing difficulties and required immediate intubation and subsequently full ventilation. Wassim Chehade went into asystole (cardiac arrest) and cardio-pulmonary resuscitation was commenced by medical staff, and continued throughout that resuscitation.

10 On review by a consultant anaesthesiologist, Wassim was transferred to theatre for an urgent laparotomy on the diagnosis of severe internal bleeding. On arrival to theatre it was noted that chest expansion on the right side of Wassim Chehade's chest had decreased. At approximately 7.15pm a medical decision was made to cease resuscitation and Wassim Chehade died.

11 In evidence, a Dr Botterill, a Fellow of the College of Surgeons in Australia, detailed the injuries sustained by the deceased in the shooting in accordance with the post-mortem he performed on the deceased on 2 July 2000, and at page 97 of the transcript his evidence was:

“I have labelled them as wounds 1, 2, 3, 4 and 5. 1 and 2 were in the left forearm and those 3, 4 and 5 are the ones in the trunk and the first wound was over the back part of the left forearm closer to the elbow than the wrist.
The point where the entry occurred was about eight millimetres across and was surrounded by a rim of abrasion, which was up to about three millimetres across. There was no soot or unburnt powder stippling over the wounds. That one went through the skin and the underlying tissue and muscle of the forearm. That broke the forearm bone, which is the bone which goes between your thumb and your elbow and then came out of the other side of the forearm through a hole which was about fifteen by seventeen millimetres.”

Dr Botterill continued:

“... The bullet has then exited from the forearm and then appears to have struck the left side of the chest resulting in an abrasion or graze and the bullet did not appear, it has come through the arm, does not appear to have punctured the skin and go through the body but rather left an abrasion or a graze and when the clothes which corresponded to that area of the body were looked at, a large bullet fragment of the injury was retrieved. So assuming the position I am in at the present time with my palms facing you, the direction of the gunshot one is downwards from the back of my body towards the front of the body and going from the left side toward the right side.”

12 Dr Botterill described the trajectory of the second bullet wound, as entering the back of the body towards the front in a downward motion. The third bullet entered the deceased's body through the skin and muscle and passed between the 9th and 10th left rib entering the cavity around the lungs and through the tissue surrounding the spinal cord.

13 The fourth bullet entered the deceased's body on the left side of the body of the main trunk, went through the left kidney, through the gland, damaged the large blood vessel in the bottom part of the body, damaged the liver and the right hemidiaphragm, entering the right lung cavity. Dr Botterill stated that this was a most serious wound and because of the involvement of the major blood vessels such as the aorta and vena cava, the nature of such injuries are almost certain to be fatal as surgery is often too difficult and not successful. The fifth and final bullet entered the deceased's body through the left hip bone and travelled between the 11th and 12th ribs, striking the left kidney, breaking the left lung and damaging the surrounding tissue and muscle, entering the left lung cavity. Dr Botterill also described this as a most serious wound.

14 The offender asserted in his evidence that the deceased had alighted from the car and was coming towards the offender in an aggressive manner, although the offender could provide no reason as to why the deceased would want to harm him. He said that he had taken a number of drugs that day, asserting that he had taken heroin and Rohypnol and also Lysergic Acid, which he asserted caused the decision to shoot the deceased as it enhanced the danger he felt when he saw that the deceased was coming toward him, his experience being, that the deceased had shown violence towards others in the past.

15 Following the shooting, the offender ran off down Mary Street with Moustafa Abbas and Aimen Chami, through the intersection to where their car was parked. The three young men, along with Moustafa Abbas' cousin, made their way to Melbourne that night, with the offender arriving in Melbourne on 2 July 2000. Police obtained records of phone calls made by the offender from his mobile phone, which were admitted in evidence, and showed phone calls made from Melbourne early on 2 July 2000, despite his denial that he was in Melbourne.

16 The offender stayed with an uncle in Melbourne until he was arrested on 13 July 2000. Phone intercepts admitted in evidence showed that during that time the offender was making some attempts to make arrangements to leave the country.

17 Whilst in Melbourne the offender was in contact with both of his girlfriends, one of whom brought two hundred ecstasy tablets to Melbourne for the offender, at his request. The offender was attempting to use the proceeds of sale of the ecstasy tablets to assist him on his intended departure from Australia.

18 Phone intercepts admitted into evidence recorded the following conversation between the offender and his girlfriend:

“THE GIRLFRIEND: You choose what you're doing now or love me and you choose that.
OFFENDER: No I didn't.
THE GIRLFRIEND: Well, you didn't think, did you?
OFFENDER: The hustler had to do what he had to do.
THE GIRLFRIEND: No, you didn't have to do it.
OFFENDER: Yes, I did.
THE GIRLFRIEND: HUH.
OFFENDER: Yes, I did.
THE GIRLFRIEND: No, you didn't honey.
OFFENDER: I swear to God I had to do it.
THE GIRLFRIEND: No, you didn't.
OFFENDER: All right, listen, would you rather me like this now or six feet under? Choose, are you going to choose or not?
THE GIRLFRIEND: I want you alive.
OFFENDER: Well, that's right, that's what I had to fucken do.
THE GIRLFRIEND: Hassan, as if that dickhead,, that gronk, would have done that to you.
OFFENDER: Hey, that gronk, you don't underestimate him, all right. You don't underestimate gronks, keep that in mind.
THE GIRLFRIEND: What, was he holding a gun to your fucking head?”

19 To look to the subjective factors, there was no evidence presented at the trial that there had been animosity between the two men, there had never even been an altercation between them, according to the evidence given by the offender, and certainly no evidence that Wassim Chehade should have feared for his life on the evening of 1 July 2000.

20 In the report by the psychiatrist, Dr John Shand, dated 29 April 2002, admitted in evidence on behalf of the offender during submissions on sentence, the following opinion was expressed:

“When I returned to consideration of the absence of any motive for Chehade's alleged intention of bashing him, I received the same usual answer. He denied, that is the offender denied, that he knew of any reason why Chehade wanted to bash him but he was quite sure that it was going to happen.”

21 In evidence the offender stated that he always carried a gun around with him, and even though he was not expecting trouble, he did have the gun loaded and strategically concealed in the waistband of his trousers. He claimed that it was necessary, in the area within which he lived, to be constantly prepared for trouble, and asserted that he always carried the gun for protection.

22 The following account provided to Dr Shand is recorded in his report in this fashion:

“To a question about why he carried a gun he said it was for protection against those of whom he had made enemies. His description indicated that he and others in the social group of up to thirty members fought with and bashed members of other groups because they had bashed and beaten one of the members of his group causing, in effect, loss of face, embarrassment and shame to the group containing the loser of the fight. He agreed to the importance of being "macho" to the group as a whole, so that group members had to take revenge on the winner of the fight with the other group.”

The offender then went on to say that Wassim Chehade and his brothers were all part of the same "group".

23 The offender was born on 2 March 1978, into a large family, he being the second youngest of ten children. Both of his parents were migrants from Lebanon. His four sisters are all married, living respectfully with their families. Three of his five brothers have served prison sentences for attempted murder. The offender loved, and was loved by, his parents and siblings. He is ashamed of his drug addiction and he feels sorry for his family and for the shame that he has put them through as a result of what he has done.

24 The offender left school at the age of sixteen years, but during his time as a student had shown no interest, and had frequently "wagged" school. After leaving school the offender completed a panel beating apprenticeship over four years and was apparently happy with that job and his boss. On leaving that work he started working for his brother in the tow-truck business but that only lasted five months. The offender worked for another brother in the car detailing business for approximately three months. The offender does not seem to have worked since that time.

25 The offender was having, as I have indicated, relationships with two women at the time of his arrest. One had lasted two and a half years, the other was six months old at the time of his arrest. He spent time between the residence of each of his girlfriends and his home. Whilst the offender seems to have played rugby league in the past, it seems that his only hobby at the time of the arrest was taking illicit drugs.

26 The offender first took heroin in 1996, at the age of eighteen. He smoked marijuana since he was fifteen. The offender has been a poly-drug user since commencing on heroin in 1996 frequently taking other drugs such as Lysergic Acid, amphetamines, ecstasy and benzodiazapines, reporting to Dr Shand in his report, that he financed his drug habit by stealing from others.

27 The offender has a long criminal history, commencing in the Children's Court. He was convicted of offences in the Children's Court ranging from driving unlicensed, excessive speed whilst unlicensed, robbery and aggravated robbery. Since becoming an adult in 1996 he has been convicted of a number of serious driving offences, ranging from unlicensed driver and other offences such as using violence to cause fear, maliciously destroying property, possession of illegal drugs and assault causing actual bodily harm. He was convicted of affray in 1997, for which he served six months periodic detention. He continued to have serious driving offences.

28 On 16 November 2000, at Gosford Local Court he was convicted of malicious damage and imprisoned for three months and similarly convicted and sentenced for three months, for an offence of three or more people using violence to cause fear. On 15 November 2001, he was convicted of assault occasioning actual bodily harm, for which he received a sentence of imprisonment for six months.

29 Although I am unable to find that the offender arranged the meeting with the deceased for the specific purpose of killing the deceased, it is clear that the meeting was arranged, and that it was contemplated by the offender that the killing of the deceased was a possibility.

30 I reject the offender's version of events that he was in some way defending himself against actions by the deceased. There is no evidence before me as to the reason for the meeting, that being a matter entirely between the deceased and the offender.

31 Whatever the reason for the meeting, and whether the killing was pre-planned, I find beyond reasonable doubt that that action of the offender, in firing five times into the body of the deceased, was carried out with the intention of killing the deceased, and in looking at the medical evidences I find the deceased was killed as a result of the bullets fired into his body by the offender.

32 In sentencing, the facts relating to the offence itself, as well as factors relating to the offender himself, must be taken into account. The court must weigh up those objective and subjective circumstances, and any aggravating and mitigating factors that provide the basis for assessing the seriousness of the offence and culpability of the offender.

33 Pursuant to s61 of the Crimes (Sentencing and Procedure) Act 1999 (‘The Act’), the court must impose a mandatory sentence of life imprisonment, if it is satisfied that:

“The level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

34 It was decided in R v Twala (unreported, NSWCCA, 4 November 1994) per Badgery-Parker J (with whom the other members of the Court agreed) at page 7:

“However in order to characterise any case as being in the worst case category it must be possible to point to particular features which are of very great heinousness, and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)".

35 The level of culpability in the offence requires, therefore, consideration of any factors in mitigating the objective seriousness of the crime, such as provocation, but does not include subjective features mitigating the penalty to be imposed; see R v Ibbs (1987) 163 CLR 447 at 451-452, and R v Dodd (1991) 57 A Crim R 349 at 354.

36 I do not consider that this is a "worst-case" category crime, but nonetheless I want to emphasise that I find this to be a most serious crime, a callous, cold blooded crime, acted out in a serious degree of violence and, in effect, with the intention to murdering the deceased, denying that young man the right to live. There is little remorse shown by the offender, evidenced in part by his plea of not guilty, and while he expressed himself in terms of remorse to Dr Shand, Dr Shand made the following comment on remorse by the offender, at page 8 of his report:

“He expressed remorse by several times mentioning "regret" about what he did, but it was not associated with much, if any signs of emotion which I could see as consistent with remorse".

37 In the view of the court, this is more in the nature of self-pity than sorrow for what he did, or remorse, or contrition for his action. Expression of regret may be correct but not necessarily for what was done and the consequences to the victim’s family.

38 Section 21A of the Act provides statutory provisions which must also be taken relevantly into account by all sentencing judges when sentencing. They are as follows:

“ (1) In determining the sentence to be imposed on an offender, a court must impose a sentence of a severity that is appropriate in all the circumstances of the case.
(2) For that purpose, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the case,
(b) if the offence forms part of a course of conduct consisting of a series of criminal acts - that course of conduct,
(c)the personal circumstances of any victim of the offence, including:
(i) the age of the victim (particularly if the victim is very old or very young), and
(ii) any physical or mental disability of the victim, and
(iii) any vulnerability of the victim arising because of the nature of the victim's occupation,
(d)any injury, loss or damage resulting from the offence,
(e)the degree to which the offender has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence, or
(ii) in any other manner,
(f) the need to deter the offender or other persons from committing an offence of the same or a similar character,
(g) the need to protect the community from the offender,
(h) the need to ensure that the offender is adequately punished for the offence,
(i) the character, antecedents, cultural background, age, means and physical or mental condition of the offender,
(j) the prospect of rehabilitation of the offender.
(3) In addition, in determining whether a sentence under Division 2 or 3 of Part 2 is appropriate, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender under that sentence.
(4) The matters to be taken into account by a court under this section are in addition to any other matters that are required or permitted to be taken into account by the court under this Act or any other law.
(5) This section does not apply to the determination of a sentence if proceedings (other than committal proceedings) for the offence were commenced in a court before the commencement of this section.”

39 This, however, does not detract from the Common Law provision, that the sentence to be imposed for any crime must take into account the many different purposes which, that sentence is expected to serve: condemnation and denunciation of the offence, the protection of society, personal and public deterrent, retribution and reform; see Veen (No 2) (1987-88) 164 CLR 465.

40 The joint majority judgment of Veen (No 2) of Mason CJ, Brennan, Dawson and Toohey JJ then went on to hold in relation to the purposes of sentencing, at p 467:

“The purposes overlap and none of them can be seen in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to appropriate sentences but sometimes they point in different directions.”

41 Public and individual deterrence is a principal objective of sentencing and subjective considerations (with the exception of youth and mental incapacity) made on behalf of each offender, no matter how persuasive, will always be subordinate to the primary duty of the Courts, which is to impose a sentence which must principally serve to deter the further commission of similar crimes: See R v Rushby [1977] 1 NSWLR 594 at 597-598; R vPurdey (1993) 65 A Crim R 441 at 445. In the R v Rushby, Street CJ said at p597, when citing with approval the New Zealand Court of Appeal in the R v Radich, a frequently cited passage, which I repeat:

“One of the main purposes of punishment ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment".

42 Retribution for the injury perpetrated by the offender is also an important aspect for consideration in sentencing: See R v Crump (unreported NSWCCA, 30 May 1994) at p 22 per Hunt CJ at CL, wherein His Honour held that it is important that not only the community feel satisfied that the offender receives his just desserts, but also the victims, and in this case the family left behind, are satisfied that justice has been done.

43 These principles of sentencing emphasise the fact that rehabilitation is only one of the purposes of punishment and, as Hunt CJ at CL enunciated in Purdey at 445, will always be subsidiary to the need for a sentence to act as a deterrent to the public, and particularly as a means of retribution for the crime that has been committed.

44 In terms of general deterrence, only aiming to discourage by fear of punishment all persons who may be tempted to commit crimes in general, there is also the factor of specific deterrence directed towards deterring the offender personally from repeating his crime. General principles of deterrence must be adjusted to the individual case if justice is to be achieved in the individual case. In that respect R v Rushby has applied.

45 I have taken into account all the relevant considerations identified in s21A of the Act, together with the Common Law authorities cited above, and generally, I am satisfied, of course, that in accordance with s5(1) of that Act that, having considered all the possible alternatives, no penalty, other than imprisonment, is appropriate; see the R v Zamagias [2002] NSWCCA 17.

46 I do not consider that the evidence before me supports the view that, the drugs the offender had taken on the day he murdered Wassim Chehade played a significant part in the murder. The offender was a seasoned poly-drug user, and from the evidence, it is highly unlikely that the drugs he took on the night of the murder, which did not vary from his normal habit, was likely to have caused the alleged amnesia suffered by the offender in relation to the facts of what happened on 1 July 2000, the day of the death of the Wassim Chehade. I do not accept that he had amnesia.

47 In terms of matters that need to be considered under s21A of the Act, I find that whilst the drugs taken by the offender may have had a disinhibiting effect on him, affecting his perception and judgment of the situation, the offender himself admitted that the heroin and the Rohypnol he had taken were more likely to have calmed him down than provoked him to do it. In terms of the matters otherwise to be considered under s21A of the Act, which I set out earlier, I take into account that arrangements for the meeting were made by the offender, that the deceased was a young person and was shot in the presence of his younger brother and a friend in the most reprehensible of circumstances. I also take into account that the offender has shown little or no remorse or contrition for the offence. He is sorry for the harm he caused to his family, which is not necessarily an altruistic feeling. He has made no reparation for the injury. There is a need to deter the offender, as a young man and, indeed, any other similar person, from committing such offences.

48 There is little in the criminal history of the offender that can be said in his favour and there is little in his cultural background or history that mitigates the seriousness of his action. The main matter that can be found in his favour is that he is young, and he will have a large part of his life still ahead when released from the sentence I propose to impose.

49 Notwithstanding the detailed evidence put before me by Dr Shand, and the fact that there is, and I accept as correct, a diagnosis of personality disorder/anti-social, and the history which has been given, I find little prospect of serious rehabilitation of the offender.

50 I must refer to the evidence before me concerning the offender's prospects in terms of rehabilitation. He has not engaged in any drug rehabilitation courses available at the prison in the past. When he has been in prison before he has continued to be a drug user.

51 Dr Shand made the following pertinent points in his report:

“Whether or not he will be a threat to society in the future will depend importantly upon whether he continues to be a drug abuser and drug dependent. It will also be dependent upon a change in his cultural values and his adherence to violence as a means of settling inter-group conflicts. The first test is about his ability to give up drugs in gaol, which I hope will involve monitoring by urine testing. The second test is to see whether he is capable of achieving maturity of personality function along healthy lines rather than on the psychopathic tendencies demonstrated so far. My prognosis for him is not optimistic.”

52 These views of Dr Shand I accept.

53 I have taken into consideration all the circumstances of this case, including the objective and subjective facts detailed, and the law involved, and I consider there is little evidence before me, apart from the offender's youth, that are available to me as mitigating factors. I have considered the circumstances of this case and acknowledge that it was not part of a series of crimes.

54 It was put by Mr Stratton QC, on behalf of the offender, that he was, as I have found, a young man of twenty-four, from a large family with no great education or work record, and that he had come to a dead end in his life; that he was a drug addict and part of a group mentality. I accept these submissions. I take into account the offender’s youth in the setting of the head sentence and the non parole period.

55 Although it was submitted the offender was dealing with the deceased, who had come toward him in an aggressive manner, I have rejected that view of the facts in the light of the incontrovertible and unchallenged evidence of the bullet wounds sustained by the deceased, nor as I stated above, have I found that the drugs, taken by the offender, played any significant role in the actions of the offender.

56 I was referred by the Crown to the sentencing statistics produced by the Judicial Commission, which show that approximately forty-seven percent of all sentences for murder, for persons with prior counts of various types, being twenty years and higher and that non-parole periods show fifty-seven percent have fourteen years as a minimum term and fourteen percent have a non-parole period of sixteen to eighteen years. It was also put by the Crown that the Court should take into account the circumstances of the murder where a number of shots were fired into a moving vehicle where other persons were present in that vehicle.

57 In terms of the guidance of appropriate sentencing, I have been referred by the Crown to a number of authorities, and in particular referred to R v Privett [2001] NSWCCA 518, where a sentence of seventeen years and nine months, which included a parole period of three years and three months, did not have the head sentence interfered with, other than a correction of what the Learned Sentencing Judge appeared to have miscalculated what the Sentencing Judge intended was a minimum term of three quarters of the head sentence and was thus adjusted by that Court to a non-parole period of thirteen years and four months. In another authority, R v Poskart [2001] NSWSC 189, Hulme J, in a sentence, not in precisely similar circumstances to the present sentence, imposed a sentence of twenty four years and six months, with a non parole period of eighteen years and six months.

58 Taking into account the cold callous nature of the killing of the deceased, it is necessary to denounce this type of killing, where a victim is called to a remote location and in the presence of supporters of the assailant, the offender had deliberately and intentionally shot the deceased on five occasions with the intention of killing him. It is clear that a severe and condign sentence is called for.

59 I have, however, taken into account the seriously dysfunctional family and the offender's cultural background and the fact that he suffers from the personality disorder of an anti-social type. I take into account his youth, not only at the time of the offence, but now, and I have noted that he has been kept in fairly secure custody when taken into court since his arrest, so I can take it he has done time harder than normal offenders, and I have, therefore, reduced the sentence that I would otherwise have imposed by a period of two years.

60 The commencing sentence, which I would have found appropriate in the circumstances, was a period of twenty-four years. It is also appropriate that in assessing a period for which he would be eligible for parole that there is no basis for extending that period beyond five years, as there are no circumstances, or special circumstances, that would warrant a person at his then age, having more than five years supervision, to see if he has made sufficient adjustment to fit back into society and free himself of the drug related dysfunctional associations that have been a contributing circumstance to this senseless killing.

61 Noting the restrictions that were imposed whilst he has been in custody, I consider that it is appropriate, since the prime purpose for him being in custody was for the present trial, that his sentence be backdated to the date of his arrest.

62 Hassan Kalache, would you please stand up.

63 For the murder of Wassim Chehade, of which you were found guilty by a jury, you are convicted and sentenced to a period of imprisonment of twenty-two years, such period of imprisonment to commence on 13 July 2000, and to conclude on 12 July 2022. I fix a non-parole period of seventeen years to commence on 13 July 2000, and to conclude on 12 July 2017, from which time you will be eligible for parole.

oOo

Last Modified: 07/09/2002