R v Klein

[2008] NSWSC 835

CITATION:	R v Klein [2008] NSWSC 835
HEARING DATE(S):	16/04/2008, 5/05/2008, 25/07/2008
JUDGMENT DATE :	15 August 2008
JUDGMENT OF:	Buddin J
DECISION:	For the crime of murder, the offender is sentenced to 22 years imprisonment with a non-parole period of 16 years and 6 months. Both terms will commence on 11 January 2005. The head sentence will expire on 10 January 2027 and the non-parole period will expire on 10 July 2021. The offender will be eligible for release to parole on 10 July 2021.
CATCHWORDS:	Sentencing - murder - intent to kill but not premeditated - sentencing following successful appeal against earlier conviction
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Fahs v R [2007] NSWCCA 26 Legge v R [2007] NSWCCA 244 MAH v R [2006] NSWCCA 226 R v Fahda [1999] NSWCCA 267 R v FD & JD (2006) 160 A Crim R 392 R v Fowler (2003) 151 A Crim R 166 R v MA (2004) 145 A Crim R 434 R v MJR (2002) 130 A Crim R 481 R v Previtera (1997) 94 A Crim R 76 R v Simpson (2001) 53 NSWLR 704 Robertson v The Queen (2007) 177 A Crim R 121 Tarrant v R (2007) 171 A Crim R 425 The Queen v Olbrich (1999) 199 CLR 270; The Queen v Weininger (2003) 212 CLR 629
PARTIES:	Regina Gaby Michael Klein (aka Kalischer)
FILE NUMBER(S):	SC 2002/2281
COUNSEL:	G Tabuteau (Crown) P McGrath (Offender)
SOLICITORS:	Solicitor for Director of Public Prosecutions (Crown) Andrews Solicitors (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 15 AUGUST 2008

2002/2281 – R v GABY MICHAEL KLEIN (aka KALISCHER)

REMARKS ON SENTENCE

1 HIS HONOUR: Gaby Michael Klein (also known as Kalischer) (whom I shall refer to as the offender) stands for sentence having been convicted by a jury of the murder of Gurkan (also known as Gary) Moustafa (whom I shall refer to as the deceased) at Gladesville on 15 February 2001. This is in fact the third occasion on which the offender has stood trial on this indictment. I shall return in due course to discuss in a little more detail the history of these proceedings.

2 The maximum penalty for the offence of murder is life imprisonment. Because the offence was committed prior to 1 February 2003, the provisions which now govern the regime of standard non-parole periods have no application to the present case.

Factual background

3 As the Crown case was a circumstantial one, it will be necessary to draw certain inferences from the evidence in order to make the relevant findings of fact. In approaching that task I must proceed in accordance with well-established principles: see The Queen v Olbrich (1999) 199 CLR 270; The Queen v Weininger (2003) 212 CLR 629. It is appropriate nevertheless to observe that there has been little, if any, dispute about the facts which I should find for the purpose of sentencing the offender.

4 The jury has decided the only issue upon which the trial was contested, namely whether the Crown could establish to the requisite standard that the offender was the person who killed the deceased. The deceased was shot once in the chest and then in the back of the head. According to Dr Cala, who conducted the post-mortem examination, the first shot would not have been fatal. However the second shot which was to the back of the head, and which Dr Cala estimated was fired from a distance that was in the range of 2-12 centimetres, was fatal. Although the murder weapon has never been discovered, the evidence established that the deceased was shot with a .32 calibre bullet, which was probably fired from a revolver or a pistol.

5 The deceased was killed in a mobile phone store which he operated with his brother, Ken Moustafa, at 124 Victoria Road, Gladesville. A man named Adam Kalnins worked for them. The offender had known all three men for some years. Indeed the offender’s brother, Danny Kalischer, had operated a mobile phone business from those very premises for some years in the 1990s. Both Ken Moustafa and Adam Kalnins at one stage worked for that business as did the offender. In due course, Ken Moustafa and the deceased commenced to operate their own mobile phone business, which became known as Replay Communications, from those premises.

6 About a month prior to the fatal incident another of the offender’s brothers, Ronny Kalischer, provided the business of Replay Communications with a consignment of mobile phones. The order was made by Adam Kalnins on behalf of the business. The consignment was delivered to the premises and it was agreed that the cost of the mobile phones would be $1500. Payment for the phones was not made at the time of delivery. In the weeks that followed, a number of requests for payment were made by Ronny Kalischer. At some stage the offender became aware of the debt and he too sought to recover it by speaking to both Adam Kalnins and the deceased. Nonetheless his efforts as well as those of his brother, Ronny, proved to be unsuccessful. On 14 February 2001, that is the day before the murder, Ronny Kalischer, asked his father, Peter Kay to intervene. Peter Kay, who was a professional debt collector, spoke first to Adam Kalnins and then to Ken Moustafa in an attempt to recover the money but his overtures were likewise rebuffed. Ken Moustafa told Peter Kay that there would be no payment until such time as he was provided with the contact details of Danny Kalischer. Ken Moustafa maintained that Danny owed him $50,000 for gambling debts, a sum which he was anxious to recover. It was thus apparent that, as of that date, neither the deceased nor Ken Moustafa was going to pay for the consignment of mobile phones, or at least not in the foreseeable future.

7 The Crown case, which the jury obviously accepted, was that it was against that background that the offender attended the mobile phone shop. The irresistible inference is that he did so in order to confront the deceased with the intention of applying pressure to him so that the money would be repaid and, that it was during that confrontation, that he shot and killed the deceased.

8 A good deal of evidence was adduced concerning the offender’s movements on the morning of the shooting. The evidence revealed that he twice called his brother, Ronny that morning before 10 am from his home in Castle Hill. He told Ronny that he would be in the Gladesville area that morning and that he would make enquiries about the outstanding debt. Shortly after the second of those calls, he made a call at 9.51 am to the mobile phone shop which was answered by Adam Kalnins. Adam Kalnins gave evidence that the offender enquired as to whether Ken and Gary Moustafa were in the shop. Kalnins said that he told him that they were. Possessed with that knowledge the offender set off for Gladesville. He was riding a red Honda XR 650 motorcycle and was wearing a white helmet, goggles and was carrying a backpack.

9 A number of eyewitnesses gave evidence of seeing a man riding a red Honda XR 650 motorcycle in and around Pearson Street, which is the street directly behind the shop, at various stages that morning. It is common ground that that man was the offender. Although the earliest sighting of the offender was suggested to have been in the period between 10.00 am and 10.30 am, I am inclined to the view, given other evidence, that the offender arrived there closer to 11 am. Three Telstra workers, Michael Hubbard, Shane Paterson and Cane Martovski each gave evidence of their observations of the offender in Pearson Street. They took particular notice of the motorcycle because each of them had an interest in motorcycles and because its various manoeuvres caught their attention. There were other sightings made of the motorcycle and its rider at about that time by Mandaline and Daniel Colazzo who were residents of Pearson Street.

10 Adam Kalnins gave evidence that he unexpectedly bumped into the offender at about 11.15 am as he was on his way to buy provisions at the Caltex service station, which was a few doors down from Replay Communications. The pair had a short conversation and then entered the service station together. At 11.18 am a phone call was made by the offender to the mobile phone shop from the pay phone which was located inside the service station. In all probability, that call was received by the deceased. According to the time recorded on the CCTV footage maintained in the Caltex service station, the offender was briefly in those premises on his own between 11:16 am and 11:17 am whilst he and Adam Kalnins were in there together between 11:20 am and 11:21 am.

11 During the next half hour or so there were further sightings of the offender. For example, he was seen by Ms Ingrid Vesper outside her unit block, which is on the corner of Punt Road and Victoria Road, for a period of time commencing from about 11.20 am. She said that he was sitting on his motorcycle looking up Victoria Road in the direction of the mobile phone shop. She said that he was totally fixated on what he was doing, even to the extent of being apparently oblivious to the crashing of the roller door to her garage. Her daughter, Jessica also observed the offender in that location in that general timeframe. It appears that the offender remained there until about 11:50 am. At about that time Ingrid Vesper saw him reaching into his backpack in which, on the Crown case, the offender had secreted a gun and ammunition.

12 At about 11.50 am Ken Moustafa left Replay Communications in order to attend a meeting in the city. That meant that Adam Kalnins and the deceased were left behind in the premises. The Crown case was that the offender would have seen Ken Moustafa leaving the premises because he was watching them intently and the only exit from the shop was onto the footpath adjacent to Victoria Road.

13 At 11.54 am the offender made a further call to the mobile phone shop from the pay phone in the Caltex Service Station. The clear inference is that the deceased answered the phone and that that call enabled the offender to establish that he was still in the premises. At 11.55 am the offender called Ronny Kalischer from the payphone in the service station. At 11.56 am Ronny rang Adam Kalnins. According to Adam Kalnins, Ronny said “I’ve been told if I were you, I’d get out of there”. Although Ronny gave evidence that the call which he received from the offender was of a completely innocuous nature, the only available inference is that the offender, in the 11:55 am call, requested Ronny to pass on the message to Adam Kalnins that he should get out of the premises. In any event, Adam Kalnins said that shortly thereafter he left the shop and returned to the service station.

14 At about that time the two Telstra employees, Michael Hubbard and Shane Patterson went to the service station to buy lunch. They saw the same Honda motorcycle that they had seen earlier. It was on the driveway of the service station and the rider was on it. As they passed it, Shane Patterson observed that it had no registration plates on display although it did have a Husqvarna label affixed on it. Those two witnesses said that the rider made no effort to go out onto Victoria Road although there were plenty of opportunities for him to do so. The rider, and again it is common ground that it was the offender, was observed to be wearing shorts and as a result a tattoo on his leg was partially visible. It is apparent from the CCTV footage in the service station that the offender was wearing shorts on that day. Equally it is clear from a photograph taken of him at some later stage, that he has a tattoo on his leg. Hubbard and Patterson, according to the time on the CCTV footage, entered the Caltex shop at 11:56 am and departed from it at 12:06 pm.

15 As I have said, Adam Kalnins gave evidence that he left the mobile phone store and returned to the service station. The catalyst for him doing so was undoubtedly the call which he had received. He gave evidence that he decided to get some lunch in order that he could remain with the deceased in the premises all afternoon in case something happened. He said that he again bumped into the offender who at that stage was sitting on his motorcycle outside the service station. He said that they then had a short conversation during which the offender asked him if it was “left to Ryde”. He said that that struck him as being a strange remark given that the offender was conversant with the geography of the area. It is clear that Kalnins was away from the shop for only a short period. According to the time shown on the CCTV footage, Kalnins entered the Caltex shop at 11:57 am and departed again at 11:59 am. He said that when he returned to the store he discovered the deceased lying slumped on the floor. He made a triple 000 call which is recorded as having occurred at 12.02 pm. Shortly thereafter ambulance and police arrived at the premises but they were unable to revive the deceased.

16 Daniel Colazzo gave evidence that he heard the sound of a loud bang coming from the direction of Victoria Road at a time which he estimated as being 12 noon. That is when, on the Crown case, the deceased met his fate. Shortly before he heard the loud bang Mr Colazzo said that he had observed the motorbike, which he had seen earlier, pull into the driveway of a bottle shop which is next door to the deceased’s premises.

17 Steven Crass, who was working behind the counter of the bottle shop, observed a man at about that time walking from his left to his right down Victoria Road past the bottle shop. Mr Crass gave evidence that he saw the man, who was wearing a helmet, reach into the backpack which he was carrying. It can be inferred from his description of what the man was wearing and carrying that the man he saw was the offender. The offender then walked to the rear of the bottle shop where his motorcycle was parked.

18 From there the offender made his way to the home of a friend, named Jacob Compagnon, who lived nearby at 8 Higginbotham Road, Gladesville. Mr Compagnon was not at home at the time but his mother was and so the offender was able to gain access to the premises. From there he made a call at 12.14 pm seeking Mr Compagnon’s assistance. At the time, Mr Compagnon was at a demolition site but in due course he made his way home in his truck. Whilst he was waiting for Mr Compagnon, the offender phoned his then girlfriend, Laura Saaib, and asked her not to tell anyone that he had been in Gladesville that day. According to another friend, Jamie Hall, he and the offender had a conversation to similar effect. Jacob Compagnon gave evidence that when he returned home, the offender asked him for his shirt which the offender then put on. He said that the offender asked him to drive him to Kenthurst in his truck but asked him to first drive past the mobile phone shop in Gladesville, even though it was in the opposite direction to Kenthurst. When they got there, they observed the crime scene which had, by then, been established. They then proceeded to Kenthurst which is where Danny Kalischer lived and conducted his business.

19 What occurred when they arrived at Kenthurst is to be found in the original version of events which Jacob Compagnon provided to officers from the Crime Commission. In short, the offender did a number of things which were designed to alter the appearance of the Honda motorcycle. Clearly they were done in order to prevent it from being associated with the scene of the crime. Included in those activities were the removal of the Husqvarna label from the motorcycle and the affixing of a registration plate to it. When police later searched the premises they were able to make observations which had the effect of corroborating that aspect of Mr Compagnon’s version of events. Police also located the offender’s backpack but were unable to locate the helmet which he had worn. According to what Mr Compagnon told Crime Commission officers, the offender also washed his hands with chemicals and cleaned the handlebar and grips of the motorcycle.

20 There is also evidence that the offender had the means to carry out the killing because he was at the relevant time, in possession of or had access to, a weapon of a kind which was capable of firing a .32 calibre bullet. In his statement to the Crime Commission, Mr Compagnon said that he saw a weapon being removed by the offender from the roof in the Compagnon home two days after the murder. He described the gun as being a silver revolver with a calibre that was “smaller than a 9 mm”. It was in what looked like a “cotton money bag”. The Crown case, which the jury undoubtedly accepted, was that the offender had secreted the gun there on the occasion when he had gone to the premises immediately after killing the deceased. The offender was very familiar with the premises having at one stage lived there. Laura Saaib gave evidence that she saw a silver gun wrapped in cloth under the offender’s bed a few days before the shooting. There is also evidence, in the form of a statement made by Jamie Hall to police in August 2001, in which he too described seeing the offender, in the period shortly before the fatal incident, in possession of a silver revolver. He said that he thought that it was wrapped in a cloth and thought that it was bigger than a .22 calibre. Indeed he said that he and the offender went out into the bush where the offender fired one or two shots with it. Although the offender denied that he had ever had a pistol or revolver, the effect of this body of evidence (which I accept), is that three different people said that they had seen the offender with a gun of the relevant kind at around the time of the shooting of the deceased. Their descriptions as to the colour, size and shape of the gun were very similar.

21 The offender did not give evidence during the course of the trial, although he had done so at the previous trial. His case emerged from a record of interview which was conducted with him by police on 16 February 2001 and from an affidavit sworn by him on 16 February 2004. In the record of interview, he conceded that he had been in Gladesville on the morning of the shooting and that he had travelled there from his home in Castle Hill on a red Honda XR 650. He agreed that he had had a helmet and a backpack with him. His purpose, he said, was to check his mail at the Gladesville post office where he had a mailbox. He agreed that he had parked his motorcycle out the front of the service station. He said that he had seen Adam Kalnins at the Caltex service station but maintained that they had not discussed money. He also agreed that he had phoned his brother, Ronny, from the pay phone which is located inside the service station.

22 In his affidavit, the offender provided further details about the events which had occurred on 15 February 2001 and, in particular, provided an explanation for his presence in the vicinity of the mobile phone store at around about the time that the deceased died. In effect, the offender asserted that Adam Kalnins had requested him to provide him (Adam Kalnins) with an alibi whilst other persons, to the knowledge of Adam Kalnins, were planning to rob the store. He said that Kalnins had approached him a week before the offence and had offered him $1000 for his services, an offer which he had accepted. According to the offender, Adam Kalnins had said that men from a business named Bravo Communications were to be involved in the robbery. The principal of that firm gave evidence denying that he had had any involvement in the offence.

23 The only evidence adduced on behalf of the accused was from Christian Gimenez who said that the deceased, who was a friend of his, was scared in the period just before his death. According to Mr Gimenez, the deceased told him that he wanted to obtain a gun and that he wanted to get rid of some people in Telopea Street. In particular, the deceased’s grievance seemed to be directed at someone called Rahme. However, Mr Gimenez readily conceded that he was abusing both alcohol and heroin at the time and that that may have altered his perception of things.

24 Mr McGrath, who appeared on behalf of the offender, also adduced further material during the course of cross-examination of Ken Moustafa, which was designed to raise the reasonable possibility that people other than the offender had good reason to harm either him or the deceased. There was, for example, evidence of an incident in which the deceased had enlisted the support of three men to confront and rough up Ken Moustafa in the business premises of Replay Communications. There were also other incidents, all of which had been reported to the police, involving either actual violence or threats of violence to Ken Moustafa, which had occurred in the shop in broad daylight. There was evidence of men coming around armed with guns threatening to shoot him, of threats to throw acid in his face and a reference to money being owed to people from the Melbourne underground. There was also reference to a man named John Camilleri who was enlisted by Ken Moustafa to assist in collecting an outstanding debt from Danny Kalischer and who later threatened Ken Moustafa himself. Fingerprints, consistent with Mr Camilleri’s, were located in the deceased’s premises on 15 February 2001. As I understand it, that man was suggested to be in some way connected with the Melbourne underground. All of those activities were asserted to have arisen from gambling debts allegedly owed by Ken Moustafa.

25 Notwithstanding that material, I am of the view that the various components of the Crown’s circumstantial case, when taken in combination, made it a compelling one. I have come to that conclusion notwithstanding the fact that there was no direct evidence linking the offender to the offence and nor for that matter was there any forensic evidence that was capable of doing so. Moreover, there were legitimate criticisms to be made of some of the Crown witnesses. There were two or three instances in which witnesses had delayed in providing important information to police which was inculpatory of the offender. There were also two witnesses to whom I have already referred, Jacob Compagnon and Jamie Hall, who resiled in important respects from statements which they had originally provided to the Crime Commission in which they had furnished material which was damaging to the offender. Although I excluded evidence of various conversations between the offender and Jacob Compagnon, that material was otherwise before the jury for its assessment as were the reasons which those witnesses gave for having resiled from their original versions. Jamie Hall was unavailable to give evidence and his evidence from the previous trial was read to the jury. However, Jacob Compagnon did give evidence. He was a most unimpressive witness. Notwithstanding the extensive warnings which the jury was given about the potential unreliability of his evidence, I am confident that the jury accepted that the version which he originally provided to investigating authorities was a truthful account of events.

26 Perhaps the most significant problem which confronted the offender was the fact that it was impossible to see how anyone else could have had the same opportunity as he did to commit the crime, particularly given the very tight timeframe in which the relevant events occurred.

27 The offender’s cause was not assisted by the fact that he gave three different versions of events. The first version, namely that he had not been in Gladesville on the day in question was quickly abandoned by the offender when he ascertained, from speaking to Adam Kalnins prior to being interviewed by police himself, that he (Kalnins) had told police that he had seen the offender in the Caltex service station that morning. The offender, armed with that information, then tailored what he told police to fit in with what he understood them to already know about his movements. Although he made no admissions during the course of the ERISP, a number of his answers coupled with his overall demeanour, were most unlikely to have created a favourable impression with the jury. A number of his answers, in my view, were calculated to be vague and ambiguous, or were otherwise heavily qualified. Some were simply implausible. Similarly, his affidavit represented an endeavour on his part to explain his presence in the vicinity of, and his apparent interest in, the mobile phone shop on the day in question. In particular, it was a calculated attempt on his part to explain why his actions had made him so conspicuous. However, other conduct on his part, such as removing the registration label from the motor bike, cannot be explained on that basis. The jury rejected his explanations for his conduct, as do I.

28 I have received a victim impact statement from the mother of the deceased. The feelings which she has so eloquently expressed and the grief which she and her family have suffered is entirely understandable. She refers, in poignant terms, to the fact that the deceased had struggled all his life with a blood disorder and that had he died from that disease then she would have been better able to cope with his death. 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. I extend to the family and friends of the deceased my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now 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.

Subjective Features

29 Various testimonials and a psychiatric report prepared by Dr Olav Nielssen have been tendered on behalf of the offender. I have drawn heavily upon the material for the purpose of gaining some understanding of the offender’s background. He is now aged 37 but he was 29 at the time of the offence.

30 His parents were born in Israel. They came to Australia independently of one another but met here and got married. The offender is one of five children although sadly an older brother died in infancy. He was very distressed when his parents separated when he was about 12. He left school part way through year 10 and eventually went to work for his older brother in the mobile telephone business.

31 Although he has never married he has two daughters, aged 11 and 13 from separate relationships. The offender is clearly devoted to them. I have had the benefit of a testimonial from Shane Greg, who is the mother of the offender’s 13 year old daughter. Although that daughter lives with her mother, she has at times resided with the offender and he remains very involved in her life.

32 The offender also retains the close support of his cousin who lives in Melbourne and of his mother, who attended court throughout the trial and gave evidence on his behalf during the sentencing proceedings. Each of them speaks in glowing terms about his personal qualities. Glen Crozier, who conducts a tree lopping business, provided a testimonial in which he attested to the offender’s ability as an arborist and to the fact that he has been a dedicated employee in his business. The evidence also reveals that the offender is a person who ordinarily shows no signs of having a violent disposition.

33 The offender seems to have spent the various periods of time that he has been in custody in a productive fashion. He is now employed as a sweeper and also occupies himself with his studies. Some insight into the offender is provided by Mr Kevin Street who provided a reference, which includes the following passage:

[The offender] has always impressed me as a caring person who, not only thinks of his family, but thinks about the welfare of others. An example of this was when [the offender] wrote to Scholastic, an international book company on the Central Coast. This project had the approval of the Governor and [the offender’s] purpose was to obtain reading material for the children of inmates at the Lithgow Correctional Centre. His request was successful and a number of boxes of books were donated by Scholastic. These books were used by children of inmates during visits to keep fathers connected with their children’s educational progress, especially in reading.

34 The offender told Dr Nielssen that, as far as he was aware, there was no family history of any psychiatric disorder and nor had he previously consulted a psychiatrist. Dr Nielssen was unable to discern any psychiatric disorder for which the offender required treatment. The offender did however report that in the years before the offence he had regularly abused illicit drugs, including cocaine and ecstasy.

35 Concerning his state of mind at the time of the offence, Dr Nielssen reported that the offender said that:

… as far as he could remember he was mentally normal. He confirmed that he had been using stimulant drugs in the period leading up to the offence, but did not remember being affected by any kind of drug on the day of the offence itself. He said that he remembered that he had to ride his motorcycle that morning, which he said meant that he had to be “alert and wary”. He did not remember if he had been drinking or if he had taken any kind of stimulant drug on the night before the offence.
[The offender] said that he had some memory of the events of the day of the offence. He said “2001 ruined my life…a friend died…I got charged with his murder…I choose not to remember it”.

36 Dr Nielssen then expressed the following opinion:

[The offender] was assessed to have a low risk of further offending because of the isolated nature of the offence, which was probably due to a combination of circumstances that would be unlikely to recur. The risk of further offending declines with age. [The offender] was assessed to have good prospects for eventual rehabilitation because of his above average intelligence and his strong family support.

37 Although the offender does not have the benefit of an entirely clear record, it is nonetheless a comparatively minor one. In 1991 he was placed on a recognisance in the Local Court in respect of an offence of stealing from a dwelling. In 1993 he was sentenced in the District Court to a minimum term of 5 months imprisonment with an additional term of 4 months for two offences of larceny. In the same year he was placed on a recognisance in the Local Court in respect of 15 counts of obtaining a benefit by deception. In 1995 he was fined and had his licence disqualified for an offence of driving with the middle range of prescribed alcohol in his blood.

38 This matter has had a somewhat tortured history. Given that the offence occurred on 15 February 2001, it has taken an inordinately long time to resolve these proceedings. The offender was arrested in Queensland on 6 September 2001. He was extradited to New South Wales and on 11 September 2001 was granted bail in the Local Court. He was committed for trial on 29 May 2002. He was due to stand trial on 3 February 2003 but the trial date was vacated. It appears that, although the application was made on behalf of the offender, it was not opposed by the Crown. The offender remained on bail until 20 August 2003 when it was revoked by Davidson AJ following the offender’s entering a plea of guilty to the charge of murder on that date. At the time he was represented by Mr Dalton SC. Although a statement of facts was tendered on 6 February 2004, it would appear that the matter was then stood over to enable various factual disputes to be determined. On 16 February 2004 the offender swore the affidavit to which I referred earlier. It was served on the Crown the following day. On 20 February 2004 Mr Dalton indicated that his instructions had been withdrawn (presumably because of the contents of that affidavit). On 30 July 2004 Davidson AJ granted the offender’s application to withdraw his guilty plea. As to this aspect of the matter Dr Nielssen reported that the offender told him that he had indeed entered a plea of guilty “because at the time he felt that he had no choice”. Dr Nielssen continued:

[The offender] said that he had no complaints about the fairness of the trial in which he was finally convicted and said much of the evidence from the original trial had been excluded. He said that he was shocked when the jury convicted him after a short deliberation.

39 On 14 December 2004 the offender was granted bail by the Supreme Court. The offender’s first trial upon this indictment ended in a hung jury on 21 March 2005. At his second trial he was convicted and his bail was revoked on 28 September 2005. On 2 December 2005 the offender was sentenced by Whealy J to 24 years imprisonment with a non-parole period of 18 years. On 13 July 2007 the Court of Criminal Appeal quashed the offender’s conviction and ordered a retrial. On 30 August 2007 the offender was once again granted bail by the Supreme Court. Bail was revoked when the offender was convicted on 14 April 2008. It is common ground that as of that date the offender had spent 3 years 3 months and 3 days in custody in respect of the offence. It is agreed that I should commence the sentence from 11 January 2005 to reflect those earlier periods of custody.

Relevant sentencing principles

40 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 (the Act). See also R v MA (2004) 145 A Crim R 434.

41 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 life has been quite needlessly taken.

42 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.

43 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 of the Act. 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). I will make specific reference to those matters which I regard as being of particular relevance to the sentencing exercise. 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 it.

44 There are two matters specifically referred to in s 21A(2) which have been raised in submissions as having potential relevance to the present sentencing exercise. The first, and it is common ground, is the fact that it is a matter of aggravation that a weapon was used: s 21A(2)(c). Having said that, I accept that a very great number of homicides involve the use of a weapon. The Crown also submitted that, in accordance with s 21A(2)(n) of the Act, the offence should be regarded as being “part of a planned or organised criminal activity”. I accept that the offence may be so characterised, at least insofar as it involved a plan to confront the deceased with a loaded gun in order to extract from him the outstanding debt. Clearly enough that is a matter which is relevant to an assessment of the objective gravity of the offence, but I would not be inclined, in this context, to also treat it as an aggravating feature in the sense in which that expression has been interpreted in the authorities: see for example, Fahs v R [2007] NSWCCA 26; Legge v R [2007] NSWCCA 244. Furthermore, I am unable to determine, given the state of the evidence, precisely when the gun was actually loaded.

45 I also accept the submission that the murder itself was not premeditated in the sense that the offender did not embark upon the plan, which I have just described, with an intention to kill the deceased. Nonetheless, it is common ground that by the time the fatal shot was fired, the offender had clearly informed an intention to kill the deceased. Mr McGrath concedes that no other inference is open because the evidence unequivocally establishes that the deceased was shot from very close range to the back of the head. That being so, it is clear that the offender would have been very aware, from having fired the first shot, that the deceased had been badly injured. He would also have been aware that the deceased could identify him. Given that the shots must have been fired in quick succession, I am of the view that it is likely that the offender, in a moment of panic, decided to kill the deceased to ensure that he could not be identified.

46 I take the view that the offender’s prior record assumes little, if any, significance so far as the present sentence proceedings are concerned. His previous convictions are for offences of a very different character from the present one and were all committed some considerable time ago. In the circumstances I am prepared to treat the offender as someone who does not have a significant record of previous convictions: s21(A)(3)(e).

47 It is apparent from what I said earlier that the offender has been on bail for periods which, in total, exceed 3½ years. The fact that he was on strict reporting conditions, and that he faithfully abided by them during those periods, is a factor which the offender is entitled to have weighed in his favour. In evaluating this matter I have had regard to the principles enunciated in R v Fowler (2003) 151 A Crim R 166 at [para 242]. Furthermore, the period of time which has elapsed since his arrest has enabled the offender to demonstrate that not only has he made progress towards his rehabilitation but also to show that he has acquired a measure of maturity. Some consideration should also be afforded to the offender for the anxiety of having these proceedings hanging over his head for so long. Nevertheless, in assessing the weight that should be extended to the offender on account of this factor it is appropriate to record that part of that delay is attributable to his own conduct. See generally, R v Fahda [1999] NSWCCA 267; Robertson v The Queen (2007) 177 A Crim R 121.

48 Because the offender has only a limited criminal record, because his present offence was totally out of character, and because he has conducted himself in a law-abiding fashion in the years since the offence occurred, I am of the view that he has more than reasonable prospects of rehabilitation. In coming to that conclusion I have also taken into consideration the age that he will have reached when he becomes eligible for release on parole. The only reservation I have concerning his rehabilitation arises from the fact that the offender seems to have only limited insight into his offending behaviour. As I have said, he told Dr Nielssen that he was shocked by the jury’s verdict. In that context I am also left somewhat puzzled by the fact that he originally pleaded guilty but then reversed his plea. Be that as it may, the offender’s denial since that point in time, of any involvement in the offence deprives him of any claim for leniency upon the basis that he has demonstrated remorse for his actions.

49 It was expressly conceded on behalf of the offender that there was no warrant for a finding of “special circumstances”. The effect of the overall sentence which I shall impose will, in any event, enable the offender to have an extended period of supervision in the community whilst on parole.

50 One matter which does need to be addressed is the sentence which was imposed upon the offender by Whealy J following his conviction at the previous trial. In that context my attention was drawn to the decision in Tarrant v R (2007) 171 A Crim R 425. In that case offenders A and B were originally sentenced, following their convictions for murder, to a sentence in each case of 17 years imprisonment with a non-parole period of 13 years, whilst offender C. received a sentence of 14 years imprisonment with a non-parole period of 11 years. The Court of Criminal Appeal quashed the convictions of all three offenders but they were each convicted at their retrials. The judge at the second trial, having made findings of fact upon the material led at that trial, saw no reason to differentiate between the roles played by the various offenders. In the result each offender received an identical sentence of 16 years with a non-parole of 12 years. It can thus be seen that whilst the sentence for offenders A and B were reduced, the sentence for offender C. was increased. C. appealed against the sentence imposed upon her upon the basis that the second sentencing judge was, in effect, constrained from passing a heavier sentence than had been passed on the previous occasion. The Court rejected that submission.

51 The Crown submitted that I should impose the same sentence as that imposed by Whealy J whilst Mr McGrath submitted that I should impose a somewhat less severe penalty. In support of his submission, Mr McGrath placed particular emphasis upon the fact that the offender’s subjective circumstances were now somewhat different. In particular he pointed to the question of delay, and to the related fact that the offender had been on stringent bail conditions for an extended period, as being matters that were now available to be weighed in the balance in the offender’s favour whereas they were factors which were not, nor could they have been advanced with the same force, before Whealy J. I am disposed to accept that submission. I am also of the view, having both read his Honour’s remarks on sentence and from what I have otherwise gleaned about the evidence which was led in that trial, that there was material before his Honour (that was not before me) which may have inclined his Honour to have taken a slightly more serious view of the matter than the facts before me would justify.

52 In any event, although the decision of Whealy J commands significant respect, being a sentence imposed by a very experienced judge of this court, what the decision in Tarrant (supra) illustrates is that I must exercise my own sentencing discretion after having had regard to the material which has been placed before me in these proceedings.

53 In R v MJR (2002) 130 A Crim R 481, Spigelman CJ with whom Grove, Sully JJ and Newman AJ agreed, said that:

Similarly, I am now satisfied, after assessing the above authorities, that it is, “out of keeping'' with the provisions of s 19 of the Crimes (Sentencing Procedure) Act for this Court to refuse to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender. Accordingly, the view I expressed in PLV was incorrect. (at 31)

54 Those remarks are apposite to the present case because it is clear from statistics maintained by the Judicial Commission, and from a schedule of sentences imposed in cases which may be considered to be somewhat comparable to the present case, that the introduction of legislation providing for standard non-parole periods has seen an increase in the sentences imposed for the offence of murder.

55 Notwithstanding the circumstances in which the offender committed this offence, a human being has lost his life in quite terrible circumstances. There is no escaping from the fact that the deceased was killed in circumstances revealing a very considerable degree of callousness. Accordingly, it is necessary to impose a sentence which properly reflects the objective gravity of the offence in question, and which gives effect not only to the various matters referred to in s 3A of the Act, but also to the maximum penalty prescribed by the legislature. In setting the effective overall non-parole period, I have borne steadily in mind the need to fix the minimum period which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704.

Sentence

56 For the crime of murder, I sentence the offender to 22 years imprisonment with a non-parole period of 16 years and 6 months. Both terms will commence on 11 January 2005. The head sentence will expire on 10 January 2027 and the non-parole period will expire on 10 July 2021. The offender will be eligible for release to parole on 10 July 2021.

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