R v Khan; R v El Sankari

[2022] NSWDC 338

District Court

New South Wales

Medium Neutral Citation:

R v Khan; R v El Sankari [2022] NSWDC 338

Hearing dates:

28 July 2022

Date of orders:

11 August 2022

Decision date:

11 August 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Mr Khan – [134] to [138]

Mr El Sankari – [139] to [143]

Catchwords:

CRIME — Violent offences — Discharge firearm with intent to cause grievous bodily harm

CRIME — Violent offences — Assault occasioning actual bodily harm

CRIME – threaten to use an offensive weapon with intent to commit an indicatable offence

Legislation Cited:

Attorney General’s Application under s 37 Crimes (Sentencing Procedure Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2103) 249 CLR 571

Hoskins v R [2021] NSWCCA 169

Muldrock v R (2011) 244 CLR 120

Palijan v R [2010] NSWCCA 142

R v Lawrence [2005] NSWCCA 91

R v Olbrich (1999) 199 CLR 270

R v Qutami [2001] NSWCCA 353

R v Scognamiglio (1991) 56 A Crim R 81

R v Watt (unreported 2 April 1997, NSWCCA)

R v Wright (1997) 93 A Crim R 48

Texts Cited:

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington, 2013

Category:

Sentence

Parties:

Director of Public Prosecutions (Prosecutor)
Bilal Haider Khan (Defendant)
Ayman El Sankari (Defendant)

Representation:

Counsel:
G James QC (Defendant – Mr Khan)
R McMahon (Defendant – Mr El Sankari)

Solicitors:
Director of Public Prosecutions
Macquarie Law Group (Defendant – Mr Khan)
Streeton Lawyers (Defendant – Mr El Sankari)

File Number(s):

2020/277656
2020/265081

Publication restriction:

None

Judgment

1. Bilal Haider Khan appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H75868726	Offence	Maximum Penalty and SNPP
7	Discharge firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) Crimes Act 1900	25 years SNPP – 9 years
8	Threaten use of offensive weapon in company with intent to commit an indictable offence, intimidation contrary to s 33B(2) Crimes Act 1900	15 years

2. Mr Khan also asks the Court to take into account one count of assault occasioning actual bodily harm (sequence 6 H75868726) on a Form 1 when dealing with sequence 7.

3. Ayman El Sankari appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H74971130	Offence	Maximum Penalty and SNPP
6	Discharge firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) Crimes Act 1900	25 years SNPP – 9 years
4	Threaten use of offensive weapon in company with intent to commit an indictable offence, intimidation contrary to s 33B(2) Crimes Act 1900	15 years

4. Mr El Sankari also asks the Court to take into account one count of assault occasioning actual bodily harm (sequence 5 H74971130) on a Form 1 when dealing with sequence 6.

Approach to Sentencing

5. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

6. The offenders entered pleas of guilty in the Local Court and are entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

7. To the extent that I make findings of fact adverse to an offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to an offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

8. I have taken the Form 1 matters into account in accordance with the guideline judgment: Attorney General’s Application under s 37 Crimes (Sentencing Procedure Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

Agreed Facts

9. The parties tendered an Agreed Statement of Facts. I have taken the entirety of that document into account in coming to an appropriate sentence. What follows is a brief summary of the facts necessary to understand the sentence imposed.

10. The offenders and Hamza Khan (the co-offender) are known associates.

11. Police located on the mobile telephones of Mr El Sankari and the co-offender a number of videos and photographs depicting firearms and knives being held by Mr Khan, Mr Sankari and the co-offender. A firearm referred to in one of the videos by the co-offender as “my 45” is similar in appearance to the firearm used in the offences. The other firearms depicted in the videos and photographs were not alleged to have been used to commit the offences.

12. Between 26 August and 30 August 2020 the co-offender and Mr Khan had discussions about meeting the victim, Mark Shammo. On 30 August 2020 Mr Khan asked the co-offender to set it up, saying that he needed money. The co-offender did so to get his name in the good books with Mr Khan and others.

13. On 31 August 2020 the co-offender and Mr Khan continued to communicate via WhatsApp. Mr El-Sankari communicated with the co-offender via Instagram.

14. Mr Shammo had known the co-offender for about six months and they had met two or three times. Mr Shammo would speak to the co-offender on Snapchat.

15. At about 5pm on 31 August 2020 a white Audi SUV and a Mitsubishi, travelling together, drove past 41 Garrong Street, Lakemba, twice.

16. At about 5.33pm a white Audi SUV (the Audi) arrived at Bankstown RSL Club carpark driven by the co-offender. CCTV footage depicted the offenders exiting the vehicle.

17. Mr El Sankari reported to Bankstown Police Station at 5.42pm and then returned to the RSL Club carpark and left in the Audi. The Audi was depicted on CCTV footage at a service station at Chullora at about 6pm. Mr El Sankari entered the store. At this time he was not wearing the white hoodie that he had been wearing when he reported to police but was wearing black clothing.

18. At 6.50pm and 7.03pm Mr Shammo called and spoke with the co-offender.

19. At 7.19pm and 7.20pm Mr El Sankari made two short video recordings on his mobile telephone whilst he was seated in the rear of the Audi. The videos depicted Mr El Sankari holding a cream-coloured pistol, which did not match the description of the firearm used in the offences. The video also depicted Mr Khan and the co-offender in the front of the vehicle. A white Mitsubishi utility consistent in appearance with a Mitsubishi Triton (the Triton) was seen travelling in front of the Audi. The Triton was later located at the residence of Rachad Katrib (a third party). The video was taken near 40 Yerrick Road, Lakemba, which is about 350 metres from 41 Garrong Road, Lakemba.

20. Sajeda Bahadrumiad and her husband, Nayim Khalilurraman lived at 41 Garrong Road, Lakemba with their six children aged 4, 5, 9, 13, 15 and 17 at the time of the offence. The family was not known to the offenders or Mr Shammo.

21. At about 7.30pm Ms Bahadrumiad was sitting in her car completing some office work. The car was blocking the driveway of 41 Garrong Road. She noticed an off-white utility travelling very slowly down the street. She saw the vehicle slowly complete two laps on Garrong Road, entering from Lakemba Street and exiting on Yangoora Road.

22. The co-offender organised for an Uber to pick up Mr Shammo at his house in Fairfield West and take him to Lakemba. He sat in the back passenger seat and did not speak with the driver.

23. As he approached Lakemba in the Uber, Mr Shammo called the co-offender. The co-offender told Mr Shammo “you passed me, you passed me”. Mr Shammo told the Uber driver to stop and got out at about 8.09pm. Dashcam footage from the Uber vehicle showed it stopped outside 37 Garrong Road, facing south. Mr Shammo then saw the co-offender.

24. The Uber driver paused behind the white Mitsubishi Triton on Lakemba Street a few seconds after leaving Garrong Road. The Triton and the Uber driver turned right into Wangee Road which runs parallel to Garrong Road. The Triton then turned right into Yangoora Road.

25. NN (a 15 year old) and IM (a 16 year old) were in the front room of 41 Garrong Road. A short time after arriving in the Uber Mr Shammo ran into the front room of 41 Garrong Road. He put his fingers to his lips and made a shush noise. He sat down on the couch, sighed and looked relieved and tired.

Threaten to use offensive weapon to commit indictable offence in company

26. The co-offender and the offenders entered the house. They were all wearing black hooded jumpers which were pulled tightly over their heads. Two of them rushed at Mr Shammo and assaulted him while the third male stood by, holding a firearm similar in appearance to a Police issue Glock pistol.

27. The male with the pistol pointed the firearm towards NM with a gesture to him to be quiet. One witness believed she saw two firearms and described both of them as black. Mr Shammo and the other witnesses referred to seeing one firearm.

Assault occasioning actual bodily harm – Form 1

28. One of the males holding the pistol hit Mr Shammo. Mr Shammo was kneeling with his forehead on the floor and the male holding the pistol was standing over him with the gun pressed into his back. Mr Shammo was crying in pain as this male held him up by his top and then slammed him into the ground whilst striking him with his knee. The male did this twice and Mr Shammo kept crying. The males were shouting in English. A witness heard demands being made for the return of something. NM had his hands above his head. The assault of Mr Shammo was witnessed by three young persons and Ms Bahadrumiad.

29. NM told his younger sibling to hide. She went to her parents’ room and saw her four younger siblings. She told them to stay there and to shut the door.

Discharge of firearm with intent to cause grievous bodily harm

30. The altercation moved towards the front door of the house and Mr Shammo was kicked by one of the males holding a firearm causing him to roll head first down the front stairs of the house. This male then shot Mr Shammo a number of times. The offenders and the co-offender got into the Audi which was parked in front of the house and fled in a northerly directly towards Yangoora Road. CCTV footage captured a white SUV travelling on Garrong Road shortly after the shooting.

31. Mr Shammo got up and ran across the road to 42 Garrong Road and called 000. The occupant of 42 Garrong Road dialled 000 at 8.19pm.

32. Police and ambulance officers attended. Mr Shammo told the Police “I got jumped” and “I got set up I think”. Paramedics located bullet wounds to the side of his right torso, to his left groin/abdomen area, to his right leg and left foot. As police were assisting Mr Shammo they noticed a bullet round that was found on the left hand side of his foot.

33. Ms Bahadrumiad appeared to be in a state of shock and required an ambulance. She was conveyed to Canterbury Hospital.

34. Mr Shammo was conveyed to St George Hospital. A CT scan showed four bullet wounds:

1. two to the left iliac fossa, one tracking down to the left thigh where the bullet was surgically removed and one tracking into the abdomen to the right iliopsoas, right ilium and through the right subcutaneous gluteal region causing a fracture of the right iliac bone;

2. to the medial right thigh with exit wound to the lateral right thigh; and

3. to the dorsal aspect of the left foot with exit wound and associated comminuted fractures of the second metatarsal, third proximal phalanx and fourth distal phalanx.

35. Mr Shammo also suffered a laceration and swelling and bruising to his left eye. He was taken to theatre for an emergency exploratory laparotomy. An area of the small bowel was compromised by a bullet requiring 7cm of the small bowel to be removed and re-sectioned. Mr Shammo was monitored in intensive care for two days post-operatively and transferred to the ward on 3 September 2020. The fractures to his toes were treated using a boot and the fracture to his right iliac bone was treated conservatively. He was discharged from hospital on 6 September 2020.

36. At 10.27pm the co-offender messaged Mr El Sankari “yous alright”. Mr El Sankari said “I just remembered my phone was with me … if I break it now would they still track it … I’m breaking it now”. He also said that “when I ran back to get the cif I thought it was urs”.

37. A crime scene officer collected one bullet from outside 42 Garrong Road, being the bullet from Mr Shammo’s foot and one unfired 9mm bullet on the road outside 36 Garrong Road. A further unfired round and cartridge cases were located outside 41 Garrong Road. A fired cartridge case was found inside the front room at 41 Garrong Road.

38. Mr Khan’s fingerprint was located on a glass coffee table inside the front room of 41 Garrong Road. A DNA tapelift from Mr Shammo’s right shoe yielded that the DNA mixture more likely to originate from Mr Shammo, Mr El Sankari and another unknown individual. A DNA tapelift from the left forearm of Mr Shammo’s jacket yielded a DNA mixture more likely to have originated from Mr Shammo, Mr Khan and two other unrelated individuals. DNA tapelifts from the right sleeve and left shoulder of Mr Shammo’s jacket yielded a DNA mixture more likely to have originated from Mr Shammo, Mr Khan and Mr El Sankari.

39. Police located messages on Mr El Sankari’s phone consistent with his presence at the scene of the shooting of Mr Shammo.

40. On 9 September 2020 police attended 19 Narelle Crescent, Greenacre to conduct a firearm prohibition audit search that located a Glock firearm and two magazines containing ammunition in a vehicle at the premises. The white Mitsubishi Triton registration number CT75PF was located at the rear of the premises. A form of demand was placed on the owner of the Triton, Mohamed Katrib as to the driver of the vehicle at the relevant time to which Mr Katrib replied “I don’t know”.

41. The Glock firearm had its serial number obliterated. It was in working order and investigations revealed that the bullets recovered at the scene and the bullet from Mr Shammo’s thigh were fired from the Glock pistol.

42. Trace DNA swabs of the Glock firearm handle grip and the Glock firearm trigger recovered a DNA mixture from at least two individuals. The major contributor to the mixtures had the same DNA profile as Mr Khan. It is greater than 100 billion times more likely to obtain this major profile if it originates from Mr Khan rather than if it originates from an unknown, unrelated individual in the Australian population.

43. On 11 September 2020 Mr El Sankari was arrested. A search located clothing consistent with the appearance of the clothing depicted on the videos of 31 August 2020.

44. On 24 September 2020 Mr Khan was arrested at Bankstown Local Court. On the same day a search warrant was executed at his residence. Police seized black clothing consistent with the eye witness and CCTV evidence of the evening of the shooting.

Mr Khan’s Case on Sentence

45. Mr Khan tendered the following documents:

1. report of Mr Chafic Awit, psychologist, dated 22 July 2022;

2. letter from the offender dated 28 July 2022;

3. affidavit of Mohammad Safeer Khan, his father, affirmed 24 July 2022; and

4. letter from Elias Bassili, his employer, dated 25 July 2022.

5. letter from Xiangshu Jin, his father’s partner, dated 23 July 2022; and

6. his Case Note Report from the Department of Corrective Services covering the period 1 August 2021 to 17 June 2022.

46. None of the authors of the documents relied on by Mr Khan were required for cross-examination.

Mr Khan’s Subjective Circumstances, Remorse and Prospects of Rehabilitation

47. Mr Khan is presently 24 years of age.

48. Mr Khan was the middle child of three siblings, an older half-brother from his mother’s first marriage and a younger brother. His older brother lived with him on weekends when they were growing up. His parents had a strained relationship and it caused instability in his home life growing up. He described his father to Mr Awit as “violent and aggressive” and recounted an incident where his mother pulled a knife on his father requiring a psychiatric admission to hospital. He said that his mother had a history of attempted suicides and that it put pressure on him to care for his younger brother when she was ill. She was later diagnosed with bipolar disorder. Mr Khan told Mr Awit that he regularly witnessed violent aggression between his parents.

49. Mr Awit stated that Mr Khan reported experiencing significant symptoms of anxiety and depression stemming from the instability that he faced during childhood and adolescence but did not set out what those symptoms were. Later in his report, Mr Awit stated that Mr Khan experienced the following symptoms, “over the years”: low mood, feelings of hopelessness and/or worthlessness, loss of interest, feeling on the edge, feeling that bad things would happen, a bleak outlook of the future, easily agitated, difficulty with decisions, racing thoughts interfering with his attention span and poor sleeping patterns.

50. Mr Khan attended an Islamic school for primary school, followed by a public high school where he completed Year 12. Mr Khan told Mr Awit that he was disruptive and unsettled at school and often punished with detentions. He wanted to be a physical education teacher but did not secure an offer of tertiary education. He commenced work in hospitality and also worked for the NBN digging trenches. He began work pumping concrete in about 2016.

51. Mr Khan first used cannabis and cocaine at about age 16. He told Dr Awit that illicit substances helped him to forget what was going on at home.

52. His parents separated in April 2017, when he was 19. His father moved overseas at about this time. His father was the breadwinner and left the family without a means of support. He told Dr Awit that the family of four lived in a one bedroom unit in Rhodes and that he slept on the floor.

53. Mr Khan’s father deposed that the marriage breakdown was very difficult for the children and that Mr Khan was greatly affected by instability in the home and fell into drugs and the wrong crowd. Mr Khan’s father deposed that he did not have a close relationship with his son after the separation.

54. Mr Khan was arrested in August 2017 for drug supply and proceeds of crime offences.

55. In January 2018, Mr Khan’s father returned to Australia and at about that time his mother went to Turkey. Mr Khan was left to care for his younger brother for a period, before his father moved in with them. His mother remained in Turkey except for a period in about March 2018, until the end of 2021. He commenced a reconciliation with his father in about March 2018, and they are now close.

56. Mr Awit stated that Mr Khan worked hard to treat his drug addiction in 2018 and 2019, including attending regular psychological counselling sessions with Mr Awit.

57. On 12 April 2019, Mr Khan was sentenced to 2 years imprisonment for the 2017 offences to be served by way of an Intensive Corrections Order (ICO), on condition that he:

1. continue to attend psychological counselling with Mr Awit for as long as Mr Awit deemed necessary;

2. attend a psychiatrist for assessment and treatment;

3. continue to attend Narcotics Anonymous meetings on a weekly basis.

58. By early 2020, Mr Khan was too busy with work to continue treatment with Mr Awit. There was no mention in Mr Awit’s report if he approved Mr Khan’s cessation of treatment at this time, but he did opine that Mr Khan’s substance use entered early remission by the end of 2019.

59. Mr Khan was stood down from work shortly after late March 2020 as a result of the COVID-19 restrictions. Mr Awit opined that Mr Khan had been relying on his work to distract him from the “toxic environment” at home and experienced symptoms of anxiety and depression leading him to associate with the wrong crowd again and by June 2020 was using illicit substances again, including Xanax and cocaine. Mr Khan told Mr Awit that his preoccupation with work was replaced at that time by unhealthy choices of drug taking and gambling, to “numb himself” from his home environment. Mr Khan also told Mr Awit that his offending conduct was motivated by the need for money to support his addictions.

58. Mr Khan reported instability at home caused by his mother coming and going as she pleased and because his romantic relationship of about one year broke down, leading to a relapse into drug use and symptoms of anxiety and depression.

59. Mr Awit stated that Mr Khan expressed remorse for his actions. He told Mr Awit that he has found being in custody difficult and he recognises the damage that drug use has done to him, other prisoners and the community. He told Mr Awit that he does not want to return to prison in the future. He acknowledged that his actions would have caused the child victims fear.

60. Mr Khan’s incarceration has been a significant source of distress for his father who suffers from high blood pressure, coronary artery disease anxiety and depression. This is also confirmed by his father’s partner, Ms Jin. His father deposed to the conditions experienced in custody by Mr Khan including long periods of lockdown, no visits and denial of amenity such as showering for days at a time. His father now speaks with Mr Khan daily and they are close. His father recently suffered a heart attack and required surgery. This caused Mr Khan considerable distress, who has told his father that he is sorry for the offences and to the victim and that he is determined to turn his life around. His father deposed that he will support Mr Khan in his rehabilitation, when he is released from custody.

61. Mr Khan’s employer describes him as a very responsible hard worker. He has offered Mr Khan continuing employment on his release.

62. Mr Khan completed the “Getting Equippd” program in custody between November 2021 and April 2022. The Case Note Report contains some references to the difficulties experienced by Mr Khan’s parents having phone calls and AVL visits with him during precautionary COVID isolation periods.

Mr Awit’s opinion

65. Mr Awit administered the Depression Anxiety Stress Scale (DASS 21) asking Mr Khan to respond to the questions based on how he was feeling at the time leading up to the offences. Based partly on this historical application of the DASS 21, Mr Awit opined that Mr Khan was suffering from symptoms of severe depression and severe anxiety at the time of the offending conduct, concluding that his symptoms were consistent with generalised anxiety disorder and major depressive disorder.

66. Mr Awit administered the Jasper/Goldberg Adult ADHD Questionnaire, which is a self-report instrument for symptoms. Mr Awit opined that Mr Khan scored in a range “evident of severe adult ADHD symptoms” and reported symptoms consistent with the diagnostic criteria for adult ADHD.

67. Mr Awit further opined that Mr Khan’s symptoms met the diagnostic criteria for gambling disorder.

68. Mr Awit opined that there was a causal nexus between Mr Khan’s mental conditions and his offending conduct, in that:

1. ADHD, anxiety and depression are known causes of poor decision making;

2. he was under the influence of illicit substances at the time of the offences; and

3. his symptoms of anxiety and depression would have weakened his resolve and ability to sort out his problems, instead falling into established patterns of behaviour.

69. Mr Awit recommended that Mr Khan would benefit from further psychological treatment to address his substance use, gambling and mental conditions.

70. I have found it difficult to place much weight on Mr Awit’s opinion for the reasons that follow.

71. First, Mr Khan did not give evidence in the sentence proceedings and the Court should exercise considerable caution in accepting untested statements given by an offender: R v Qutami [2001] NSWCCA 353 at [58]-[59] (Smart AJ) and [79] (Spigelman CJ). Mr Awit’s opinion is almost entirely reliant on the untested history given by Mr Khan. Mr Awit specified that the only document that he relied on in compiling his report was a copy of the agreed facts. This is surprising by reference to the fact that Mr Awit had previously treated Mr Khan as a patient and I presume also gave a report in his earlier court proceedings. If Mr Awit referred to other material available to him in preparing his report but has failed to set it out then he has failed to comply with the Expert Code of Conduct. On the other hand, if Mr Awit has relied only on the history given by Mr Khan and the agreed facts, then there is very little independent material capable of corroborating the history given by Mr Khan. There are also internal inconsistencies in the history recorded by Mr Awit. For example, his mother is recorded as returning to Australia in late 2021 but was also said to be a source of conflict in the “toxic” household because she was coming and going as she pleased. However at the time when she was in Australia and capable of “coming and going as she pleased”, Mr Khan was in custody. Further, it seems unlikely that the event of his parents’ separation in April 2017 had much to do with the development of his drug addiction which had progressed to the extent of him committing a serious drug supply offence by August 2017. Finally, the evidence of Mr Khan’s father and Ms Jin does not support the relevant history recorded by Mr Awit.

72. Second, the DASS 21 scale was designed to be administered based on how a respondent feels in the week prior to assessment and the extent of its proven reliability as a psychometric test depends on this crucial feature. To the extent that Mr Awit asked Mr Khan to focus on longer period of time prior to the offences, the questioning invites responses that encourage the self-report of symptoms at the critical time and potentially skews the outcome. This information was then used as one basis for reasoning towards the diagnoses of generalised anxiety disorder and major depressive disorder.

73. Third, Mr Awit’s report appears to refer to the criteria specified in the DSM-V as a checklist to arrive at a definitive diagnosis, here to be relied on for forensic purposes. The DSM-V warns against this approach, particularly in a forensic context: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington, 2013, p.25.

74. Fourth, the diagnosis of adult ADHD is based predominantly on the administration of one psychometric test and the untested history of Mr Khan. There is no attempt to differentiate it from the effects of substance use at the relevant time.

75. Fifth, there is no convincing history given by Mr Khan or recorded by Mr Awit as to the gambling disorder. Doing the best I can to follow Mr Awit’s narrative of the history given, Mr Khan seems to have had a problem with gambling between June and September 2020. This is insufficient to meet the diagnostic criteria specified in the DSM-V, which requires the symptoms to have been persistent for 12 months.

76. Sixth, Mr Awit’s description of Mr Khan “numbing himself” from a “toxic environment” at home is unconvincing. Nowhere in the report does he set out how living with his father at age 23 and interacting with his mother, who according to his history was living overseas at that time, resulted in a set of circumstances that led to an escalation of his drug use.

77. Overall, I accept that Mr Khan had a difficult childhood as a result of his parent’s relationship and his mother’s mental state, which predisposed him to symptoms of anxiety and depression and drug use from about age 16. I accept that additional pressure was placed on him to support the family at age 19 when his parents separated, by which time he was addicted to drugs and engaged in committing offences to support his habit. His addiction subsided for a period around the time of his sentence proceedings for the earlier matters, until he relapsed into drug use in 2020 before these offences. I accept that his ability to reason through his choices was adversely impacted by his drug addiction at the time of committing the offences. I am satisfied that Mr Khan has some psychological issues stemming from his upbringing that require treatment, but for the reasons given I do not accept Mr Awit’s largely unsupported and expansive analysis of his condition.

78. I am not persuaded that there was a causal connection between Mr Khan’s psychological issues and his offending conduct. The offences were not impulsive. They were financially motivated and involved some level of organisation.

Mr El Sankari’s Case on Sentence

79. Mr El Sankari tendered the following documents:

1. report of Dr Andrew Ellis, forensic psychiatrist, dated 1 July 2022;

2. letters from the offender dated 14 July 2022 and 28 July 2022;

3. letter from Marwa El Sankari, his sister, dated 27 July 2022; and

4. letter from Zena Bassai, his mother, dated 26 July 2022.

80. None of the authors of the documents relied on by Mr El Sankari were required for cross-examination.

Mr El Sankari’s Subjective Circumstances, Remorse and Prospects of Rehabilitation

81. Mr El Sankari is presently 25 years of age.

82. He is the second of four children, having three sisters. His father works as a panel beater and his mother performed home duties. His parents divorced when he was young and he lived with his mother. There were frequent arguments in the house and violence. Mr El Sankari stated in his second letter to the Court that he was hit by his father frequently and often for no reason, causing him to always feel cautious at home.

83. Family and Community Services became involved and he was moved between his parents and his grandmother and later placed in foster care. He had 7 different placements and was separated from his sisters. In their second foster placement which lasted for 6 months, the foster carers did not provide much care for the children. Mr El Sankari got a job to be able to buy food for his sisters and his marks at school suffered. The third placement was good, but he had to travel for long periods to get to school and he ultimately had to leave the house for religious reasons. He then returned to live with his father when he was in his late teens. He was upset because he was separated from his sisters and they were doing well. His schooling suffered and he gave up on trying to succeed academically.

84. Mr El Sankari’s mother and sister confirmed the difficult circumstances of his childhood. His sister describing their parent’s relationship as vengeful and toxic, leading to the children being neglected, lost and confused. She said living with their father was scary and there was no sanctuary at home. She felt abandoned and unloved by her mother and opined that this especially impacted Mr El Sankari, who was close to his mother before she left.

85. He attended one primary school and 3 different high schools. He completed his apprenticeship as a mechanic after leaving school. He has also worked as a traffic controller. In 2020, he lost employment as a consequence of the COVID-19 lockdown.

86. He first drank alcohol at age 18 and drank on a daily or second daily basis. He was drinking a bottle of vodka each day and experienced loss of memory and the effects of alcohol the next morning. He used cannabis between ages 15-21. He first used cocaine at age 19 and his use escalated to between 3g and 6g per day. He did not eat when using cocaine causing him to feel agitated. He considered himself addicted to cocaine. He used prescription medications to come down form the use of cocaine.

87. Mr El Sankari gave a history to Dr Ellis of suffering from anxiety for most of his life. He often worried about his family and tended to overthink situations.

88. At the time of his arrest he was living with his father and his father’s partner and working full-time as a mechanic.

89. In custody, Mr El Sankari has been exercising and reading the Quran. He feels sad and low, but these feelings are not pervasive. He does not associate with other inmates and does not want to return to crime.

90. Mr El Sankari told Dr Ellis that in 2020 he had a significant cocaine habit and resultant drug debts. His work was closed and he had no money. His friends wanted to recover money from Mr Shammo, who he did not know. He felt obliged to his co-offenders because he owed them money. He filmed himself with the firearms because he thought it would look cool. Mr El Sankari told Dr Ellis that he thought he would go along as the peacemaker, but it turned ugly, and one of the co-offender’s held and then used the firearm.

91. In custody, he has been working in the kitchen and the joinery shop. He has undertaken a first aid course and a 2 day alcohol course. He has enrolled in a business course and pre-university courses in literacy and numeracy, but these have been impacted by the pandemic and he is keen to complete them when he gets the opportunity. He has been in lockdown as a result of the pandemic and floods for more than 100 days. His pod was in lockdown at the time of the sentence hearing. Mr El Sankari plans to get a heavy vehicle licence and work in excavation. He now has a good relationship with his father and his relationship with his mother is improving. He remains close to his sisters. He is willing to participate in activities to assist with his rehabilitation.

92. Mr El Sankari told Dr Ellis that he was embarrassed and disgusted with himself and that he had disgraced his family. He is sorry for his actions and the trauma caused to the families involved. He intends to get married, distance himself from criminal associates and is willing to undertake rehabilitative treatment. He has also expressed remorse to his sister and mother. In his first letter to the Court, he stated concern for the impact of his actions on the victims.

Dr Ellis’ opinion

93. Dr Ellis opined that Mr El Sankari met the diagnostic criteria for substance use disorder and generalised anxiety disorder stemming from his disrupted childhood, and pre-disposing him to self-medicating with drugs. His offending conduct was most closely related to his drug use rather than anti-social personality issues. It is likely that his extensive cocaine use contributed to his impulsive decision-making. Dr Ellis opined that Mr El Sankari was socially immature, had not had stable parental role models and was probably easily influenced.

94. Dr Ellis recommended that Mr El Sankari engage in treatment for his substance abuse, cognitive behavioural therapy for his generalised anxiety disorder and relational therapy to address his early life experiences.

95. Dr Ellis opined that Mr El Sankari presents with a number of risk factors for recidivism, including his criminal history, substance use and mental health issues.

Objective Seriousness

96. The offences involve considerable objective gravity.

97. The victim was lured to the scene of the offences for the purpose of being confronted with a demand for the return of property. The surrounding circumstances of this aspect are unclear. The Crown conceded that it could not prove beyond reasonable doubt that the victim was lured to the scene to be attacked or shot.

98. Mr El Sankari’s involvement in the communications preceding the offences was less than that of the co-offender and Mr Khan. However, I cannot be satisfied beyond reasonable doubt on the evidence that the offenders were planning to commit criminal offences at that time. There was some planning leading up to the offences including arranging for the victim to be conveyed to the scene and Mr El Sankari changing his clothing.

99. From the facts, I cannot be satisfied beyond reasonable doubt as to which of the three offenders, held the gun, struck Mr Shammo as outlined or eventually shot him. Each of the offenders are to be sentenced on the basis that they participated in a joint criminal enterprise to commit the offences.

100. Mr Khan admitted to the psychologist that he had a financial motive for the offences.

101. Each offence was committed in company. To the extent that this is an element of the s33B and assault occasioning actual bodily harm offences, and an aggravating factor of the s 33A offence, I have not double counted it.

102. The offences involved a substantial level of violence against Mr Shammo involving blows, kicks and ultimately gunshot wounds resulting in serious injuries, requiring surgery and hospitalisation. The intention of the offenders was to use the gun to inflict serious bodily harm and that was achieved by shooting Mr Shammo multiple times. There is no evidence that the injuries have resulted in permanent impairment.

103. The offenders pursued Mr Shammo into the home of innocent victims, a number of whom were vulnerable by reason of their age.

104. The offences would have been terrifying for Mr Shammo and the occupants of the house. Ms Bahadrumiad was taken by ambulance to hospital for treatment.

105. The pointing of a loaded firearm constitutes a serious form of the s 33B offence. The victim was vulnerable by reason of his age. The victim was threatened in his own home, where he was entitled to feel safe.

106. Mr Khan was exposed to violence between his parents and his mother’s mental illness during his upbringing. I accept that he suffered from symptoms of anxiety and depression leading to drug use. His moral culpability for the offences is slightly reduced: Bugmy v The Queen (2103) 249 CLR 571 and Hoskins v R [2021] NSWCCA 169 at [57]-[61] (Brereton JA).

107. Mr El Sankari had a deprived background marked by violence, a lack of parental role models and in stability in his home life and schooling. I accept that this deprivation was instrumental in development of his mental conditions that predisposed him to drug use. His drug use and lack and social immaturity have made him impulsive and easily influenced. His moral culpability for the offences is reduced: Bugmy and Hoskins.

108. Judge Yehia SC (as her Honour then was) assessed the s33A offence as falling into the mid-range of objective seriousness when sentencing the co-offender, an assessment with which I respectfully agree.

109. I have taken into account the maximum penalty for the offences and the standard non-parole period for the more serious offence.

Deterrence

110. Offences of personal violence are viewed very seriously by the courts. Deterrence is an important consideration particularly in cases of unprovoked attacks involving a weapon. Any assault involving the use of a firearm must be regarded as calling for a significant sentence, for the purposes of both general and specific deterrence to be given any effect: R v Watt (unreported 2 April 1997, NSWCCA). The community has a rightful expectation that the Courts will impose penalties for these offences that demonstrate the offences are serious and will attract serious punishment.

111. General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge: The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.

112. The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, whether the offender acted with knowledge of what they were doing and the gravity of their actions and whether the community require protection from the offender by reason of the mental condition suffered.

113. The offenders’ substance use was the most direct cause of their offending behaviour. Their addictions were a choice and should not be considered as an excuse. There is no evidence to suggest that either offender did not know what he was doing was wrong or did not realise the gravity of his actions.

114. There is a need for specific deterrence. The offenders need to realise by reference to the penalty imposed on them for this offence that if they continue to commit serious criminal offences that they will be met with condign punishment.

115. Mr El Sankari has an extensive criminal history in a relatively short period of time. He was on nine Community Corrections Orders and an Intensive Corrections Order at the time of the offences. The offences represent a very significant upgrade in the criminality of his offending. Without treatment for his mental health and addiction issues, he presents a significant risk to community safety.

110. Mr Khan was given a significant opportunity to rehabilitate himself for a serious drug supply offence in 2019. He failed to take advantage of that opportunity. His relapse into substance use has given rise to much more serious criminal conduct and developed an interest in firearms. If he fails to address his psychological issues and substance use he presents a risk to the community.

Aggravating Factors

117. Mr El Sankari has a record of previous convictions for serious personal violence offences: s 21A(2)(d) Crimes (Sentencing Procedure Act) 1999. These include an affray in 2017, 2018 and 2020 (while in custody), intimidation in 2017 and 2018, assault police in execution of duty in 2018 and assault occasioning actual bodily harm in 2018. Mr El Sankari also has a myriad of other personal violence offences and driving offences that demonstrate his disregard for the law and that he presents some risk to the community.

118. The s 33A offence was committed in company: s 21A(2)(e) Crimes (Sentencing Procedure Act) 1999.

119. The offences were committed in the home of Ms Bahadrumiad and Mr Khalilurraman: s 21A(2)(eb) Crimes (Sentencing Procedure Act) 1999. The extent of the invasion of the sanctity of the victims’ home was significant. The offenders pursued Mr Shammo into the house, armed and with an intent to seriously injure him. They committed acts of serious acts of violence against Mr Shammo without regard for the presence of other people, some of whom were vulnerable children.

120. The offenders committed the offences while they were on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure Act) 1999. Mr Khan was on an ICO for a serious drug offence. Mr El Sankari was 9 CCOs, and ICO and conditional bail.

121. Mr Khan committed the offences for financial gain: s 21A(2)(o) Crimes (Sentencing Procedure Act) 1999.

Mitigating Factors

122. Mr Khan has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Mr Khan has indicated that he is willing to participate in rehabilitation. He has completed one course offered to him in custody. He now understands the impact that offending has had on his father and how important it is to be available to assist his father with his medical conditions. Mr Khan is a valued employee and has an ongoing offer of employment. I am satisfied that he has good prospects of rehabilitation.

123. Mr El Sankari has good prospects of rehabilitation, if he commits to treatment for his mental health and addiction: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Mr El Sankari has constructively participated in work and undertaken courses available to him whilst in custody, that are consistent with his plans for his release. He has a trade he can find work in on his release and has the support of his family. On the other hand, his response to supervision to date has been poor. He was given the opportunity of a large number of supervised bonds conditional on him receiving appropriate treatment that he has breached, by committing these serious offences. Ultimately, my finding on Mr El Sankari’s prospects is guarded.

124. The offenders have demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Khan in his statements to Mr Awit and his father has accepted responsibility for his actions and expressed remorse. Mr El Sankari in his statements to Dr Eliis and his family has accepted responsibility for his actions, apologised and expressed remorse. The pleas of guilty also indicate remorse.

Other Matters

125. I have considered s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

126. Mr Khan has been in custody since 24 September 2020. He was the subject of an Intensive Corrections Order at that time, which was revoked. He served the balance of that sentence (7 months 1 week and 5 days) in full-time custody between 24 September 2020 and 5 May 2021. I will backdate his sentence for these offences to 24 January 2021 to partially accumulate the sentence I will impose on him.

127. Mr El Sankari has been in custody since 11 September 2020. On 10 November 2020 he was sentenced to a fixed term of 14 months imprisonment when called up on a number of bonds, to date from 11 September 2019 and expire on that day. The effect of that result was to make the term of imprisonment largely concurrent with an earlier term of 12 months imprisonment served between 8 October 2018 and 7 October 2019. It should be noted that he was not actually in custody for 12 months of the period specified by the sentence. On 29 October 2021, Mr El Sankari was sentenced to 7 months imprisonment with a non parole period of 4 months for an offence of affray committed in Parklea Correctional Centre. I will backdate his sentence to 10 March 2021 to take into account the two sentences imposed on him after he was taken into custody.

128. I have taken into account the reports of Dr Ellis relating to the impact of COVID-19 in prisons in New South Wales and the related mental health issues for prisoners. I accept that the pandemic has made serving a custodial sentence more onerous and I have taken that into account in fixing the non-parole periods. I have also had regard to the specific impacts of the pandemic on each offender.

Parity

129. I must take into account the sentence imposed on the co-offender. The co-offender was sentenced to imprisonment for 7 years and 3 months with a non parole period of 3 years and 9 months for the s 33A offence, taking into account the assault occasioning actual bodily harm on a Form 1. The co-offender’s plea was a late one, entitling him to a discount on sentence of 10%. The co-offender was not required by the prosecution to enter a plea to the s 33B offence.

130. The agreed facts do not permit me to differentiate between the offenders on the basis of their roles in the offending conduct. The offences were committed for Mr Khan’s financial gain. Mr El Sankari has a more significant criminal history compared to Mr Khan. Based on my findings as to the proper weight to be given to Mr Awit’s opinion, the subjective cases of the offenders attract fairly similar weight.

131. Adjusting for the appropriate discount, a comparable head sentence for the s 33A offence is one of 6 years imprisonment. For my own part, bearing in mind that there is more than one appropriate sentence capable of being arrived at through an application of instinctive synthesis, I would have started with a much higher starting point for the head sentence of the s 33A charge, even to the extent of imposing the standard non-parole period. However, to do so now, following the sentence imposed on the co-offender would give rise to a legitimate sense of grievance in the offenders.

132. In all of the circumstances, it is appropriate to impose substantially the same sentence on the offenders as that imposed on the co-offender and on each of them for the s 33A offence and the s 33B offence.

133. The offenders must receive some penalty for the s 33B offence partially accumulated on the sentence for the s 33A offence, as a result of the exercise of the prosecutorial discretion to proceed with the charges against the offenders that it did.

Penalty – Mr Khan

134. Bilal Haider Khan is convicted.

135. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

Sequence H75868726	Offence	Indicative sentence
7	Discharge firearm with intent to cause grievous bodily harm taking into account the offence on the Form 1	6 years with a non-parole period of 3 years and 9 months
8	Threaten use of offensive weapon in company with intent to commit an indictable offence, intimidation	3 years

136. I make a finding of special circumstances. This is Mr Khan’s first time in custody and he has addiction issues and psychological issues from his childhood that require treatment and justify an extended period of time on parole. Further, the partial accumulation of the sentence imposed following the revocation of the ICO needs to be taken into account. The adjustment to the statutory ratio is modest to reflect the minimum period of time that Mr Khan should spend in custody for these serious offences and bearing in mind the failure of the supervised ICO to prevent him from re-offending in the past.

137. I impose an aggregate term of imprisonment comprising of 7 years, with a non-parole period of 4 years and 6 months to date from 24 January 2021. The non-parole period will expire on 23 July 2025 and the head sentence will expire on 23 January 2028. The offender will be eligible to be released on parole on 23 July 2025.

138. When added to the prior term of imprisonment, this reflects a total effective term of 7 years and 4 months with a non-parole period of 4 years and 10 months with a ratio of about 66%.

Penalty – Mr El Sankari

139. Ayman El Sankari is convicted.

140. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

Sequence H74971130	Offence	Indicative sentence
6	Discharge firearm with intent to cause grievous bodily harm and taking into account the offence on the Form 1	6 years with a non-parole period of 3 years and 9 months
4	Threaten use of offensive weapon in company with intent to commit an indictable offence, intimidation	3 years

141. I make a finding of special circumstances. Mr El Sankari has addiction issues and mental conditions that justify an extended period of time on parole. Further, the partial accumulation of the sentence imposed on the earlier sentences needs to be taken into account. The adjustment to the statutory ratio is modest to reflect the minimum period of time that Mr El Sankari should spend in custody for these serious offences and bearing in mind the failure of the supervised CCOs and ICO to prevent him from re-offending in the past.

142. I impose an aggregate term of imprisonment comprising of 7 years, with a non-parole period of 4 years and 5 months to date from 10 March 2021. The non-parole period will expire on 9 August 2025 and the head sentence will expire on 9 March 2028. The offender will be eligible to be released on parole on 9 August 2025.

143. When added to the prior term of imprisonment, this reflects a total effective term of 7 years, 4 months and 15 days with a non-parole period of 4 years, 10 months and 17 days with a ratio of about 65%.

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Decision last updated: 15 August 2022