R v Houri

[2007] NSWSC 615

CITATION:	R v Houri [2007] NSWSC 615
HEARING DATE(S):	16/10/2006, 19/10/2006, 04/05/2007, 01/06/2007
JUDGMENT DATE :	14 June 2007
JUDGMENT OF:	Buddin J
DECISION:	For the offence of murder, and taking into account the matters on the Form 1 document: Sentenced to a non-parole period of 12 years and 6 months with a total sentence of 18 years to commence on 13 October 2005. The non-parole period will expire on 12 April 2018. The total term will expire on 12 October 2023.
CATCHWORDS:	Sentencing - murder - significant subjective features - departure from standard non-parole period - parity
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Andrews v R (2006) 160 A Crim R 505 Cameron v The Queen (2002) 209 CLR 339 MAH v R [2006] NSWCCA 226 Postiglione v The Queen (1997) 189 CLR 295 R v AEM (Snr) & Ors [2002] NSWCCA 58 R v AJP (2004) 150 A Crim R 575 R v Alameddine [2006] NSWCCA 317 R v Apps [2006] NSWCCA 290 R v Burgess [2006] NSWCCA 319 R v Burrell (2000) 114 A Crim R 207 R v FD & JD (2006) 160 A Crim R 392 R v Hearne (2001) 124 A Crim R 451 R v Imnetu [2006] NSWCCA 203 R v JB and RJH [1999] NSWCCA 93 R v MA (2004) 145 A Crim R 434 R v MAK; R v MSK [2006] NSWCCA 381 R v Markarian (2005) 215 ALR 213 R v McKenna [2007] NSWCCA 113 R v MD, BM, NA and JT (2005) 156 A Crim R 372 R v Mills (unreported, NSWCCA, 3 April 1995) R v Nguyen [2007] NSWSC 389 R v Previtera (1997) 94 A Crim R 76 R v Sellen (1991) 57 A Crim R 313 R v Sharah (1992) 30 NSWLR 292 R v Simpson (2001) 53 NSWLR 704 R v Szabo [2003] NSWCCA 341 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Trevenna (2004) 149 A Crim R 505 R v Way (2004) 60 NSWLR 168 R v Wilson (2005) 153 A Crim R 257 R v Yildiz (2006) A Crim R 218 Veen v The Queen (No2) (1988) 164 CLR 465 Wallace v R [2007] NSWCCA 63
PARTIES:	Regina Mahmoud Houri
FILE NUMBER(S):	SC 2006/526
COUNSEL:	Ms Wilkins SC (16 & 19/10/2006 (Crown) Ms M Cuneen (Crown) R Sutherland SC (16 & 19/10/2006) (Offender) Ms C Nash (Offender)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) Barringer Leather Lawyers (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

THURSDAY 14 JUNE 2007

2006/526 – REGINA v MAHMOUD HOURI

REMARKS ON SENTENCE

1 HIS HONOUR: On 16 October 2006 Mahmoud Houri (the offender) pleaded guilty to the murder of Gao Jin (the deceased). The offence occurred on 20 December 2003 at Peakhurst. The maximum penalty for the offence is life imprisonment. A standard non-parole period of 20 years is applicable to this offence. The offender has also requested that three offences of break, enter and steal be taken into account. I will accede to that request and will take those matters into account when I pass sentence upon the offender. The first of those offences was committed in 2000 when the offender was aged 15, whilst the other two were committed in January and February 2004 respectively.

2 It is necessary to refer briefly to the sequence of events which occurred prior to the offender entering his plea of guilty. On 29 September 2005 a co-offender whom I shall refer to as H., participated in an electronically recorded interview with police. During the course of it, he implicated the offender in the events which culminated in the murder of the deceased. On 13 October 2005 the offender was arrested and charged with the present offence. He was refused bail and has remained in custody ever since. Accordingly, the sentence which I shall impose will commence on that date.

3 On 15 December 2005 H. pleaded guilty in the Children’s Court to one count of receiving the deceased’s mobile phone and a good behaviour bond was imposed upon him. He undertook to give evidence against both the offender and a further co-offender whom I shall refer to as A. On 27 January 2006 A. participated in an electronically recorded interview in which he too implicated the offender in this offence. Whereas H. was not able to directly implicate the offender in the murder, A. was able to and did so. A. pleaded guilty to the murder of the deceased on 3 February 2006. Following his committal for trial, the offender was arraigned on 5 May 2006. He entered a plea of not guilty and a trial date was then fixed.

4 On 3 October 2006 I sentenced A. for his participation in the murder of the deceased. He signed an undertaking in which he promised to give evidence against the offender. The trial of the offender was due to start later that week. However, when the matter was called on, the Crown Prosecutor informed me that it was necessary for further inquiries to be made by police because of additional information which had only just been provided to them by A. The matter was then adjourned for several days to enable those inquiries to be made. In due course it became apparent that the inquiries could not be completed in time for the trial to commence at that time. The Crown Prosecutor informed me that it found itself in a position where it was going to have to make an application for the trial date to be vacated. It was in those circumstances that the offender entered his plea of guilty. I was informed that had the trial run its course, it would have occupied 3-4 weeks of hearing time.

Factual background

5 I have been provided with an Agreed Statement of Facts. I have drawn heavily upon it in recounting the factual background. The material upon which the Crown relies is drawn in large measure from the electronically recorded interview conducted with A. on 27 January 2006. At the invitation of the parties, I viewed a video recording of the incident which was recorded on CCTV. It provides support for A’s version of events.

6 On 20 December 2003 the offender and A, who were close associates, met up and together they planned to commit an armed robbery upon the Mobil service station situated on the corner of Forest Road and Pearce Avenue, Peakhurst.

7 It was agreed between them that the offender would carry a knife. A. told police that although he knew that the knife would be used to facilitate the commission of the armed robbery, his understanding was that it was only going to be used in order to scare the console operator.

8 A. telephoned H., who was a close friend. A. and the offender then drove to H’s house in A’s motor vehicle. There they told H. that they intended to rob a service station and that they wanted him to act as their driver.

9 H drove the vehicle to the service station to enable the offender and A. to make observations of it. H. then drove to a nearby street where he parked the vehicle. He remained in the vehicle whilst the offender and A. carried out the robbery.

10 The offender and A. arrived in the vicinity of the service station shortly before 9 pm. They hid behind a fence until they were sure that there were no customers in the premises. The deceased was working alone as the attendant/console operator.

11 The offender and A. were each wearing dark coloured long sleeved hooded tops, dark pants and dark balaclavas. As they entered the premises, the deceased raised both his hands in the air in submission.

12 The offender moved to the console area whilst A. closed the sliding door, through which they had entered the premises, with his left hand. A. then joined the offender in the console area. The positions which they took up meant that the deceased was confined between them and the cash register. Although the deceased offered no resistance, the offender nevertheless produced a knife. He held it against the left side of the deceased’s neck whilst tightly gripping him by the shirt with his other hand.

13 Whilst the offender was holding the knife to the deceased’s neck, A. rifled through the deceased’s trouser pockets and the cash register. In all, approximately $600 cash was taken from the cash register. The deceased’s Nokia 3210 mobile phone, and his wallet containing an unknown amount of cash and personal papers, were also stolen.

14 A. then took a step backwards out of camera shot. The offender then suddenly, and without apparent provocation, stabbed the deceased in the back. The deceased tried to pull away but the offender maintained his grip upon him. The offender pulled the deceased toward him and then stabbed him in the back. In all the deceased was stabbed four times. At that point the offender released his grip and the deceased slumped to the floor. A. walked to the door and opened it with his left hand. The offender walked through the door and both of them left the premises.

15 The offender and A. returned to the vehicle and were driven away from the scene by H. According to H, A. immediately questioned the offender as to why he had stabbed the deceased. The offender replied that he had done so because he believed that the deceased had activated the silent security alarm.

16 H. drove the offender and A. to his house. H. was given $50 by A. and from the offender he received the deceased’s mobile phone. A. was warned by the offender not to use it for a week.

17 A short time later, a customer discovered the deceased on the floor and summoned assistance. Ambulance officers arrived and attempted to resuscitate the deceased before transporting him to hospital. The deceased died on route to the hospital.

18 A police investigation then began. Crime Scene investigators viewed the CCTV footage of the incident and observed that A. had touched the inside surface of the sliding door. They then examined the scene and obtained a DNA sample from the relevant part of the door. Subsequent analysis indicated that A’s profile matched the profile developed from the DNA which had been obtained from the surface of the door.

19 An analysis of call charge records revealed that a telephone call had been made from A’s mobile phone to H. approximately 30 minutes before the proposed armed robbery.

20 Those records also revealed that at 3.49 am on 30 December 2003 the SIM card for H’s mobile phone number had been inserted into the deceased’s stolen Nokia 3210 mobile phone and had then been used to make a telephone call which lasted for 52 seconds.

21 On 19 May 2004 a warrant was granted authorising the interception of mobile telephone services used by A. Over the ensuing three months a large number of telephone conversations were intercepted.

22 On 9 June 2004, a warrant authorising the installation of a listening device at 4/69 Dudley Street, Punchbowl, was granted. Conversations conducted in those premises between 10 June and 29 June 2004 were intercepted. A covert surveillance camera was also installed which recorded images of persons arriving and leaving the premises.

23 On 11 June 2004 police executed a search warrant at H’s home. Among the items seized from H’s bedroom was the SIM card, which had been used by him on 30 December 2003 to make the telephone call from the deceased’s stolen Nokia 3210, together with components of a Nokia 3210 mobile phone. H. was arrested and taken to Hurstville Police station. He declined however to be interviewed by police.

24 At 5.17 pm the following afternoon A. was observed entering the premises at 69 Dudley Street, Punchbowl. Some time later the offender was also observed entering the premises. Conversations in the premises were recorded by means of a listening device. During those conversations the offender and A. discussed the fact that police interest had descended upon them because police had become aware that the deceased’s phone had been used by H. There was also discussion about what each might say if they were spoken to by the police.

25 On 18 June 2004 police executed a search warrant at A’.s home. Among the items seized was a SIM card for a mobile phone which he had been using. He was taken to Bankstown Police Station where he participated in an electronically recorded interview.

26 A. was informed that H. had been arrested the previous Friday by reason of his use of the deceased’s stolen Nokia 3210 mobile phone. He denied that H. had told him that he had been arrested. A. also denied knowing anything about the murder. He was unable however to account for his movements on the night in question.

27 On 23 September 2004 a further search warrant was executed at A’s home. Several dark coloured hooded jumpers were seized. A. was arrested and taken to Hurstville Police Station. After receiving legal advice, he declined to be interviewed. He was then charged with the deceased’s murder.

28 The offender was, as I have said, arrested and charged on 13 October 2005. He declined to be interviewed by police.

29 I referred earlier to the fact that after he was sentenced, A. provided additional information to the authorities. He revealed, for example, that the offender had told him that he had lost a ring during the course of the offence. Police had in fact located a ring at the scene of the crime but, until A’s disclosure, had been unable to ascertain to whom it belonged.

30 It is necessary to refer to one factual issue which was raised during the cross-examination of the offender when he gave evidence at the sentencing hearing. He maintained that he had killed the deceased because he thought that the deceased had a gun. He was prepared however to accept that he had not actually seen a gun. He also conceded, as I understood his evidence, that there was in fact no such weapon in the deceased’s possession. He also observed that “my memory is a blur and I just lost it”. At another point he said “I just blacked out. I didn’t know what was happening. I was under the influence of drugs and I just freaked out…That’s why I reacted as I did.” In light of that evidence, I see no reason not to simply proceed upon the basis of what appears in the Agreed Statement of Facts, namely that the offender believed that the deceased had activated the silent security alarm. I am prepared to accept, however, that the offender was operating in a drug induced state. Accordingly, although that cannot excuse his behaviour, I recognise that in the circumstances it would be difficult to state with precision exactly what prompted him to behave as he did.

Subjective features

31 Tendered on behalf of the offender were three reports. They were prepared by Dr Olav Nielssen, Professor Frederick Ehrlich and Justice Health respectively. From that material I was able to glean the following information about his background. The offender was born on 18 November 1984. He had just turned 19 at the time of the offence and is now aged 22 years. Although his parents are Lebanese, the offender was born in Australia and grew up in the Bankstown area as the oldest of six children. It appears that he struggled at school. The offender told Dr Nielssen that he had learning problems from the outset of his schooling and that he repeated year 2 of primary school. A speech pathology assessment made of him when he was aged 6 revealed that he was a year behind in development. The offender told Dr Nielssen that he was “sent to the ‘time out’ group at Riverwood because of a combination of learning and conduct problems”. His subsequent schooling was also disrupted and he was suspended from school on a number of occasions. He also admitted having engaged in lighting fires during his adolescence.

32 The offender informed Dr Nielssen that he had sustained a serious head injury in a bicycle accident when he was aged 14 or 15. The accident occurred when he hit a pole whilst riding on a footpath. As a result, the offender was hospitalised for a short time. He said that he suffered an epileptic seizure after his discharge from hospital. He was then, he said, returned to hospital. He was treated with anti-convulsant medication for several years until he was advised that he no longer had any need of it.

33 The offender told Dr Nielssen that by the time he started high school he was drinking alcohol to excess as well as consuming cannabis. By mid-adolescence he was using cannabis on a daily basis. He told the author of the Justice Health report that he was consuming 20 to 30 “cones” a day and that he had been doing so for a period of 5 years. He maintained that he began using amphetamines at the age of 17. He said that at the time of the offence he was consuming 2 grams of the substance on a daily basis. I infer, from what he told Dr Nielssen, that the offender maintained that he was under the influence of the drug when he committed the offence. At the time of his arrest, the offender was enrolled in a TAFE course studying Marine Mechanics whilst also in receipt of a disability pension. The evidence indicates that he intends to complete his HSC whilst in custody and that he aspires to complete a degree in Economics and Management.

34 In March 2004, that is a few months after the offence in respect of which he stands for sentence, the offender was admitted to hospital following an incident in which he was shot a number of times in the back. As a result of that incident, a bullet lodged in his spine.

35 Professor Ehrlich, who specialises in orthopaedic rehabilitation, prepared a report which provides some insight into the offender’s physical disability. Given the significance of this issue to these proceedings, the relevant parts of Dr Ehrlich’s report are set out below:

[The offender stated that] he was taken to the St George Hospital where he remained for about a month, spending much of his time in the Intensive Care Unit.
He had to have an abdominal operation for removal of his spleen and his left kidney and he had also sustained some liver damage. A serious problem was a chest injury because his left lung had collapsed and he required tubes to be inserted into his chest. This was followed by some major infection apparently.
After a month at St George Hospital he was transferred to the Spinal Unit at Prince of Wales Hospital where he remained for some six months until he discharged himself in October 2004.
Whilst at Prince of Wales Hospital he had to have an operation to drain his infected lung but he had also been placed into a rehabilitation program having regular physiotherapy and hydrotherapy and attending a gym in an effort to enable him to ambulate.
For various reasons he left Prince of Wales Hospital, in a wheelchair, but he subsequently began to attend the Outpatients Department at the Canterbury Hospital, closer to home. He was having further physiotherapy there and walking exercises and he apparently had been able to move about in parallel bars or with an elbow support frame.
He was making slight progress up to the time of his arrest in October 2005 and he has been in prison since. He spent some time in the Medical Section at Long Bay where he had been able to bring his wheelchair which he had purchased.
In late last year he was transferred to Goulburn Hospital and apparently his wheelchair did not accompany him. Since then his wheelchair seems to have disappeared and he has been unable to retrieve it in spite of his efforts. …
(I interpolate that the evidence suggests that his wheelchair may have been removed from him by the authorities because it had been used to secrete contraband)

36 The report continues:

Present Complaints
He says that since he lost his wheelchair he has tried very hard to improve his mobility. He started using crutches last year and was able to get about to some extent but for the last two months has transferred himself to using a stick and he can walk short distances using this.
He says that his legs feel very wobbly after a short distance and he also has much pain in his lower back, his hips and knees. On those occasions when his back pain is particularly severe he does not attempt to walk but stays in his cell.
He has no urinary or bowel control. He manages his urinary problems by self-catheterisations, as often as six to eight times a day. Unfortunately he has been prone to have urinary tract infections and on a number of occasions has had to be treated with antibacterial medication. He says that he gets such infections about once a month.

His bowels require manual evacuation which he carries out himself. He takes laxatives to help with these.
One of the problems with his not having a wheelchair is that he tries to walk using a stick which in turn gives him pain for which he may take medication such as Panadeine and this tends to make him very constipated and cause problems with evacuating his bowels.
Findings
He was able to stand momentarily unsupported but was obviously very unstable and was about to fall. He was however noted to be able to walk using his stick and the distance traversed was somewhere between 50 to 100m. He believes he would not be able to go any further however.
Formal examination of his lower limbs reveals very thin and wasted calves and cold and trophic feet. Lower limb tendon jerks were uniformly depressed and he had no movement or sensation below the knees.
He did have light touch sensation, albeit at an altered level, over the fronts of both thighs and he was able to actively carry out knee extension. …
Opinion
This man has apparently sustained an L2 injury to his spinal cord. Both the sensory and the motor level at the present time indicate L2 to L3 partial function but nothing below that level.
With such a lesion it should be possible to rehabilitate him to walking; by maximizing the strength of the remaining innervation of his quadriceps and possibly the use of some stabilising devices for the knees.
Such measures however would not render him to be truly ambulant and for traversing any longer distances he would require the use of a wheelchair.
It would also be appropriate to make a wheelchair available for him even for short distances on those days when his back is particularly uncomfortable in order to avoid his having to take analgesics with their side effect.
In Answer to Your Specific Questions
1 The nature and extent of [the offender’s] injury including the level of his disability
He has L2 paraplegia which prevents him from having adequate stabilising musculature to keep his knees straight. He is capable of walking short distances with the use of a stick.
2 The prognosis for his condition
His condition should be regarded as stable from the neurological point of view but it could be improved from the functional point of view by vigorous attempts at quadriceps strengthening and improving his walking skills.
3 The effects of injury on his incarceration including its impact on the prognosis of his recovery/improvement
If he cannot be provided with regular physiotherapy and professional rehabilitation services whilst imprisoned then his prognosis is poor. He is likely to continue to be almost non-ambulant, continue to neglect his quadriceps muscles and without adequate medical supervision is likely to be subject to frequent urinary tract infections.
He had a pressure sore on his left buttock for several weeks whilst he was in Goulburn Prison but this has recovered since. The reason for this was that he was very immobile there.
Wheelchair availability would be desirable in order to allow him to traverse distances greater than a few metres and also to enable him to arise from his bed and leave his cell on those days when his back is very painful.
Summary
This man has L2 paraplegia which has been poorly rehabilitated formally but he has managed to achieve a degree of independent mobility using a stick.

37 It is apparent that the offender’s spinal injury has also had a significant impact upon his mental state.

38 Dr Nielssen made the following observations about that aspect of the matter:

[The offender] said that he saw a psychiatrist in Prince of Wales Hospital and was prescribed the anti-psychotic medication olanzapine (Zyprexa) which reduced but did not completely stop the hallucinations. He said that he also became very depressed during his recovery when it seemed that he would be confined to a wheelchair and would never recover his sexual function. He said that after his parents became distressed during a visit he attempted suicide by hanging, but was prevented from doing so. He said that he had further treatment with anti-depressant medication and counselling.
[The offender] said that he was referred to Bankstown Community Health Centre after his discharge from hospital, where he saw a Dr Renaldo, who continued treatment with a combination of anti-psychotic medication, olanzapine at large doses of up to 40 mg per day and the anti-depressant medication, citalopram (Cipramil) at the relatively high doses of 60 mg per day.
[The offender] said that he made further suicide attempts after his reception to gaol and was transferred to D Ward, the acute psychiatric ward of Long Bay Prison Hospital. He said that he had continued to take a combination of antidepressant and anti-psychotic medication since his discharge from D Ward, although he said that he had recently stopped taking medication because he began to suspect that the prison authorities were “giving me stuff to brain wash me”. He said that these beliefs were based on continued hallucinations of voices .

39 The report prepared by Justice Health makes specific reference to an occasion in August 2006 on which the offender attempted to hang himself with a sheet and had to be cut down by prison staff. A suicide note which he had written was found in his cell. The offender was then diagnosed as “suffering from a depressive disorder with possible psychotic features”. As a result he has been classified as “an extremely high risk inmate (EHR)” and is, as a consequence, kept in segregation. The offender gave evidence that he is also kept away from other inmates who may represent a danger to his personal security.

40 Dr Nielssen diagnosed the offender as suffering from substance abuse disorder and “adjustment disorder with depression”. That latter diagnosis was made on the basis “of a history of severe depression arising from the effects of a disabling spinal injury and his circumstances. [The offender] has made several suicide attempts and was treated for depression at Canterbury Community Health Centre (CCHC) prior to his arrest.”

41 Although there was some suggestion in the reports that there was a history of mental illness in the offender’s immediate family, I am satisfied, given the offender’s evidence upon the subject that that was not, and is not the case. Dr Nielssen reported that the offender had informed him that he had suffered from hallucinations in the months leading up to the offence. He said that “it is difficult to separate the symptoms of psychotic illness from the predictable effect of persistent heavy drug use”. Having reviewed the available material, Dr Nielssen observed that he was “reluctant to accept [the offender’s] account of features of a typical schizophrenic illness that began before the offence without more corroborative information”. No such material has been forthcoming and accordingly there is no satisfactory evidence before me which is capable of establishing that the offender, at the time of the commission of the offence, was suffering from any mental condition or disorder of a kind that would operate to mitigate the otherwise appropriate sentence.

42 The offender gave evidence in which he expressed his sorrow for the pain and suffering which he had caused the victim’s family. He said that he could sympathise with them given that he now understood, from personal experience, what it was like having to live with a significant tragedy.

43 I have received a victim impact statement from the deceased’s wife, Ms Julie Wang, in which she expresses the profound sadness which she and her son have experienced as a result of the loss of her husband. Not surprisingly, she refers to her complete dismay at the senselessness of her husband’s death, especially given that he had acquiesced in the demands made upon him by the offenders. The feelings which she so eloquently expresses and the grief which she and her son have suffered are entirely understandable. It is quite impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of her statement. Clearly no sentence which any court could impose can ever begin to make good that loss. The approach of a sentencing judge to a statement of this kind is well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226. Nevertheless the Court extends to Ms Wang and her son its profound sympathy for the loss which they have sustained.

Relevant sentencing principles

44 I am required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which are enunciated in the authorities that bear upon the issue. That being so, it is common ground that I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (hereinafter referred to as the Act). See also R v MA (2004) 145 A Crim R 434.

45 In determining the appropriate sentence for the offender I must also have regard to the various aggravating factors which are set out in s 21A(2) of the Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified: Andrews v R (2006) 160 A Crim R 505. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I consider as being of particular relevance. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element of the offence or if it is an “inherent characteristic” of the offence charged: see R v Yildiz (2006) A Crim R 218.

46 The offender pleaded guilty to the offence of murder upon the basis that his conduct amounted to “felony-murder”. The relevant foundational crime for present purposes is armed robbery with wounding, an offence which pursuant to s 98 of the Crimes Act, attracts a maximum penalty of 25 years imprisonment. The relevant principles so far as that category of murder is concerned were enunciated by the Court of Criminal Appeal in R v Sharah (1992) 30 NSWLR 292 at 297 and it is the application of those principles which informed the offender’s decision to plead guilty.

47 However it is also clear that the offender, in stabbing the deceased as he did acted, at the very least, with an intention to inflict grievous bodily harm. Furthermore given that the deceased was offering no resistance, the offender’s actions in stabbing him, not just once but on four occasions, were entirely gratuitous and unwarranted even if they were the result of his having panicked.

48 I do not regard the distinction between the two bases of liability as having any real practical significance in the circumstances of the present case. In so concluding it is to be observed that an offence which is characterised as a “felony-murder” does not, for that reason alone, dictate the conclusion that a lower level of culpability is involved than applies to other categories of murder: see R v Mills (unreported, NSWCCA, 3 April 1995). The seriousness with which a particular instance of felony-murder is to be regarded depends “on the nature of the acts of the offender which played a part in the death of the victim”: R v JB and RJH [1999] NSWCCA 93 at para 33. In this instance his criminality, as the actual perpetrator of the fatal act, was obviously of a very high order.

49 It is trite to say that murder is regarded as the most serious offence in the criminal calendar. As I have already observed, the maximum penalty prescribed by the legislature is life imprisonment. That indicates the seriousness with which the community views the offence. The starting point for any consideration of the appropriate penalty is the fact that a human being’s life has been taken.

50 The Crown did not submit however that the present offence fell within the worst category of case. I accept that serious as it is, it does not warrant a sentence of imprisonment for life as provided for in s 61 of the Act. That being so, s 21 of the Act, which provides for the imposition of a “sentence of imprisonment for a specified term” in circumstances such as the present, has application. Accordingly, I propose to impose a determinate sentence upon the offender.

51 I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: see s 21A(3).

52 The relevant aggravating features include the fact that the offence involved the use of a weapon: s 21A(2)(c): see also R v Wilson (2005) 153 A Crim R 257 per Bryson JA at par 23. It was also committed in company: s21A(2)(e); R v Imnetu [2006] NSWCCA 203. Of very considerable significance is the fact that the deceased, by reason of his occupation as a service station attendant, was “vulnerable” within the meaning of s 21A(2)(l). The offence was “part of a planned criminal activity” in that it involved an armed robbery which was obviously planned. Nevertheless, the homicide itself was clearly neither planned nor premeditated.

53 On the other hand, there are a number of mitigating factors upon which the offender is entitled to rely. An important factor to be weighed in the offender’s favour is his plea of guilty: see s 21A(3)(k) and s 22. It is no small matter to plead guilty to the most serious offence in the criminal calendar.

54 I referred at the outset to the circumstances in which he entered his plea. It was not contended, nor could it be, that it was entered at the first available opportunity. Although the plea of guilty came at a late stage of proceedings, it was still indicated in circumstances which enabled resources of the community and the Court to be saved. That is particularly so given, as I have said, that had it not been for the plea of guilty the trial would inevitably have had to be adjourned. Furthermore, a number of witnesses were spared from the ordeal of having to give evidence.

55 In the circumstances the offender has “facilitated the course of justice”: Cameron v The Queen (2002) 209 CLR 339. Accordingly, and because his plea of guilty has utilitarian value, he is entitled to an appropriate discount, albeit one towards the bottom of the range identified in R v Thomson & Houlton (2000) 49 NSWLR 383. Although it is apparent that the offender pleaded guilty in the knowledge that both H. and A. were to give evidence against him, the strength of the Crown case has no bearing on the assessment of the utilitarian aspect of the plea.

56 I am prepared to allow a further modest reduction of sentence to the offender on account of the contrition which he expressed whilst giving evidence: s 21A(3)(i): see generally R v MAK; R v MSK [2006] NSWCCA 381.

57 The offender is also entitled to have his age taken into account: s 21A(3)(j). However he is not entitled to the same consideration in this respect as the co-offender whom the law regards, by reason of his age, as being a juvenile at the time of the offence: see generally R v AEM (Snr) & Ors [2002] NSWCCA 58; R v Hearne (2001) 124 A Crim R 451; R v MD, BM, NA and JT (2005) 156 A Crim R 372.

58 I said earlier that one of the matters appearing on the Form 1 document occurred in 2000. I also note that a pecuniary penalty for possessing cannabis was imposed upon him in 2005 in respect of an offence committed after the present offence. It is nonetheless appropriate in all the circumstances, to treat the offender as not having a “record of previous convictions”: s 21A (3)(e). Moreover the various factors to which I have referred, suggest that the offender enjoys more than reasonable prospects of rehabilitation: s 21A(3)(g). In any event his permanent physical disability will significantly restrict his capacity to commit further offences in the future.

59 It is common ground that the sentence to be imposed should be appropriately ameliorated to reflect the fact that the offender will find his time in custody very much more burdensome, particularly because of his permanent physical disability, than would otherwise be the case: see generally R v Sellen (1991) 57 A Crim R 313 at 318; R v Burrell (2000) 114 A Crim R 207; R v Szabo [2003] NSWCCA 341 at pars 14-16. It is also reasonable to assume that he will continue to suffer the effects of his physical disability and the restrictions that that will entail, not only for the duration of his sentence, but also after he is released from custody. It seems unlikely that the offender will have the same access to rehabilitation services in a custodial setting that he would have, were he to be in the community. I am also prepared to accept that the offender is also in a severely depressed state because of his physical condition. Because he is in a fragile mental state, and because it can be inferred that he will remain “at risk”, he will need to be closely monitored by the authorities. That, in turn, will mean that there will be restrictions upon him in gaol that go well beyond what the normal inmate would experience.

60 Ms Nash, who appeared on behalf of the offender, sought to characterise what had occurred to her client as amounting to extra-curial punishment. However, as counsel readily conceded, the authorities make it plain that the principle applies in situations in which the offender sustained the relevant punishment in the course of committing the particular offence in respect of which he or she stands for sentence: see generally R v Alameddine [2006] NSWCCA 317. Plainly enough that is not the present case. Nonetheless, as I have already indicated, I intend to give significant weight to these issues upon the basis that they constitute relevant subjective features of the case which are to be taken into account in his favour.

61 As I said at the outset, the present offence attracts a standard non-parole period of 20 years. Section 54A(2) provides that “the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness in the Table to this Division”. In construing the section, I have had regard to the principles set out in R v Way (2004) 60 NSWLR 168 at pars 117 – 124, 131. See also R v AJP (2004) 150 A Crim R 575 per Simpson J at par 13; R v Apps [2006] NSWCCA 290; R v Burgess [2006] NSWCCA 319; Wallace v R [2007] NSWCCA 63.

62 It appears not to be in issue that I should impose a non-parole period which is somewhat shorter than the standard non-parole period notwithstanding the fact that the offence itself lies at least at the middle of the range of objective seriousness. I intend to do so because of the various subjective matters to which I earlier referred including his plea of guilty, his age, his lack of a prior criminal record, his physical disability and his mental state.

63 That leaves the question of parity between this offender and A. upon whom I imposed a non-parole period of 9 years and 6 months with an overall term of 12 years and 8 months. It is common ground that there are matters which distinguish their respective cases. First, and foremost, it is to be observed that the offender’s criminality was clearly of a higher order than that displayed by A. Moreover, the present offender, unlike A., also has Form 1 matters to be taken into account. Secondly, the offender is not only three years older than A. but unlike A. he is to be sentenced as an adult. Thirdly, unlike A., the offender has not provided assistance to the authorities. Finally, A. indicated his plea at a somewhat earlier stage of the proceedings. On the other side of the ledger, there is to be weighed the offender’s debilitating physical condition and the depressive condition to which it has given rise. It was in that context that counsel made the following submission:

Even though the parity principle may not strictly apply in the present case as some of the factors taken into account in relation to the co-offender are not relevant to the offender, there are however exceptionally strong subjective factors relating to this offender when balanced against the matters taken into account in relation to the co-offender which should result in a sentence equal to or not exceeding a lengthy period beyond the sentence imposed upon the co-offender.

64 In my view however, when the respective cases are balanced out and notwithstanding the difficulties inherent in weighing incommensurable factors, it cannot be said that the offender’s circumstances entitle him to the same measure of leniency that was afforded to A. Nevertheless, it is necessary to ensure that there is “due proportion” between the sentences which are imposed. The correct principles to be applied were stated by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295, in which their Honours said:

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. (at 301-2)

See also R v McKenna [2007] NSWCCA 113.

65 I have derived some assistance from a consideration of what may be considered to be comparable decisions. In particular the decisions of R v Wilson (supra) and R v Nguyen [2007] NSWSC 389 provide some instruction as to the appropriate sentence for the present offence. Nevertheless the extent of any such assistance is necessarily limited given the inevitable differences between those cases and the facts of the present case: see R v Trevenna (2004) 149 A Crim R 505. In the final analysis, I must exercise my own sentencing discretion after having had proper regard to the relevant sentencing principles to which I have referred and after having considered the salient features of the present case: see R v Markarian (2005) 215 ALR 213.

66 The Crown expressly conceded that this was a case in which I should make a finding of “special circumstances” given the significant physical disability from which the offender suffers: see Sellen (supra). In the highly unusual circumstances of the present case I will make such a finding, although I am mindful that I must not allow any form of “double counting” to infect the sentencing process.

67 In Veen v The Queen (No2) (1988) 164 CLR 465 the majority of the High Court observed:

However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guidelines to the appropriate sentence but sometimes they point in different directions. (at 476)

68 Those remarks are particularly apposite to the present case.

69 As both parties acknowledged, this is an extremely difficult sentencing exercise. On the one hand, the offender has quite needlessly taken the life of another human being in circumstances revealing a high degree of objective criminality. On the other hand, he is a young man, with no prior criminal convictions who has pleaded guilty, and who has suffered a very serious physical disability which will significantly compromise his enjoyment of life. That disability, and the depressive condition which accompanies it, will also make his time in gaol particularly arduous. Nonetheless in setting the non-parole period I have borne steadily in mind the need to fix the minimum period which the offender must spend in custody: see R v Simpson (2001) 53 NSWLR 704.

Sentence

70 Mahmoud Houri for the offence of murder, and taking into account the matters on the Form 1 document, I sentence you to a non-parole period of 12 years and 6 months with a total sentence of 18 years to commence on 13 October 2005. The non-parole period will expire on 12 April 2018 on which date you will be eligible for release on parole. The total term will expire on 12 October 2023.

**********