R v KR & PR

[2008] NSWSC 970

CITATION:	R v KR & PR [2008] NSWSC 970
HEARING DATE(S):	1 October 2007 2 October 2007 3 October 2007 4 October 2007 5 October 2007 8 October 2007 18 January 2008 22 February 2008 16 April 2008 11 June 2008 8 July 2008 12 August 2008
JUDGMENT DATE :	19 September 2008
JUDGMENT OF:	Price J at 1
DECISION:	[KR] Convicted. Sentenced to a term of imprisonment with a non-parole period of 3 years 7 months to commence on 3 March 2006 and expire on 2 October 2009. Balance of term of 1 year 7 months which is to commence on 3 October 2009 and expire on 2 May 2011. The earliest date of eligibility for release to parole is 2 October 2009. [PR] Convicted. Sentenced to a term of imprisonment with a non-parole period of 3 years 7 months to commence on 3 March 2006 and expire on 2 October 2009. Balance of term of 1 year 7 months to commence on 3 October 2009 and expire on 2 May 2011. The earliest date of eligibility for release to parole is 2 October 2009.
CATCHWORDS:	Criminal law - manslaughter by unlawful and dangerous act - extended joint criminal enterprise - sentence - plea of guilty and assistance.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 21A, s 21A(2)(n), s 21A(3)(g), s 21A(3)(e), s 21A(3)(i), s 21A(2)(j)
CATEGORY:	Sentence
CASES CITED:	Cahyadi v Regina [2007] NSWCCA 1 Mill v The Queen (1988) 166 CLR 59 R v Badanjak [2004] NSWCCA 395 R v Blacklidge (unrep, NSWCCA 12 December 1995) R v Close (1992) 31 NSWLR 743 R v Gower (1991) 56 A Crim R 115 R v MacDonald (unrep, NSWCCA 12 December 1995) R v Simpson (1992) 61 A Crim R 58 R v Smith (1987) 44 SASR 587 R v Sutton [2004] NSWCCA 225 R v Taiseni & Ors [2007] NSWSC 1090 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Wickham [2004] NSWCCA 193 Regina v Forbes [2005] NSWCCA 377 Regina v Stankovic [2006] NSWCCA 229
PARTIES:	KR PR Regina
FILE NUMBER(S):	SC 2006/2809; 2006/2810
COUNSEL:	Mr M Ainsworth Mr P Dunn QC Ms E Wilkins SC
SOLICITORS:	Ms V Garrity (Director of Public Prosecution) Mr A Dicembre McGrath, Dicembre & Company Solicitors & Barristers (Prisoners)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

19 September 2008

R v KR & PR
REMARKS ON SENTENCE

1 HIS HONOUR: [KR] and [PR] (the brothers) plead guilty to the charge that they on 2 January 2006 did unlawfully kill Robin Nassour. This is a crime of manslaughter.

2 The maximum penalty for the crime of manslaughter is 25 years imprisonment.

3 [PR] asks that an offence of common assault included on a Form 1 be taken into account upon his sentence. At his request I will do so.

4 Michael Ibrahim had also pleaded guilty to the manslaughter of Robin Nassour. Proceedings on sentence which concerned the brothers and Michael Ibrahim were heard together and all of the offenders were to be sentenced on 21 April 2008. [KR] was then represented by Mr Dunn QC and [PR] by Mr Ainsworth of counsel. Michael Ibrahim was represented by Mr Richter QC.

5 An application was made on behalf of the brothers on 16 April 2008 to vacate their date for sentence. The ground of the application was the provision of assistance by them to police. The Crown joined in the application and the date for sentence so far as the brothers were concerned was vacated. Further evidence and submissions confined to the issue of assistance were heard on 11 June, 8 July and 12 August 2008. During these proceedings, the brothers were represented by Mr Ainsworth.

6 On 21 April 2008 Michael Ibrahim was sentenced to a term of imprisonment with a non-parole period of 6 years 6 months which commenced on 16 September 2006 and expires on 15 March 2013 with a balance of term of 2 years 10 months which commences on 16 March 2013 and expires on 15 January 2016.

7 During the proceedings on sentence statements of facts agreed between the Crown, Michael Ibrahim and the brothers were tendered by consent and marked as exhibits. The agreed facts are in identical terms for each of the offenders save for some minor amendments to paragraph one of exhibit B which were requested by Michael Ibrahim.

The Agreed Facts

8 Agreed facts for the brothers are:

“1. On the evening of 31 December 2005 or the early hours of 1 January 2006 the deceased Robin Nassour (born 24 July 1971, aged 34) and his brother George Nassour (date of birth 26 February 1969, aged 36) and two friends attended the UN Nightclub (formerly known as DCM Nightclub) at 33 Oxford Street, Sydney. The co-accused Michael IBRAHIM was at the time working as a doorman at the nightclub. His brother John operated the nightclub. The accused presently before the Court are brothers. […] On the night in question, Michael IBRAHIM refused entry to the nightclub to the two friends of the NASSOUR brothers. Robin NASSOUR waited downstairs for a short time with the two friends while George Nassour tried to get them into the nightclub. He was unsuccessful and Robin NASSOUR left with their two friends and went elsewhere. George NASSOUR left and returned later to the nightclub without Robin and the two friends. On returning to the nightclub an acquaintance of George NASSOUR named Ali pestered him to get him (Ali) into the club for nothing, saying he had no money. George told him he was unable to do so, but told Ali to pretend his hand had already been stamped. Michael IBRAHIM overheard this and became angry with George NASSOUR, telling him to get upstairs. George only remained for a short time at the nightclub before leaving. He remained outside for a period of time. At one stage, Robin NASSOUR drove past the club and made a rude gesture with his finger in the direction of George, who was outside the club. Michael IBRAHIM thought that gesture was intended for him.

2. In the early hours of 2 January 2006, George NASSOUR, Robin NASSOUR and another friend went to McDonalds at Kings Cross. The accused [PR] (date of birth 16 January 1984, aged 22) and the co-accused [KR] (date of birth 27 July 1980, aged 25) were across the road and beckoned George NASSOUR across. [PR] demanded that he call Robin NASSOUR across the road. He then punched George NASSOUR in the head. This incident is the subject of the offence of assault to be taken into account on the sentence of [PR]. George, his brother and their friend immediately left the area.

3. At about 8.20pm on 2 January 2006, George NASSOUR received a phone call from a co-offender Faouzi ABOU –JIBAL (date of birth 10 January 1977, aged 29) asking George and Robin NASSOUR to attend the Meriton Apartments situated at 3 The Promenade, Chiswick, in an attempt to settle the dispute now perceived to exist between the NASSOUR brothers and Michael IBRAHIM. (Faouzi ABOU – JIBAL has since died). George and Robin NASSOUR both attended the complex at about 9.20pm on 2 January 2006, picking up ABOU-JIBAL in their car near the entrance to the complex, where ABOU-JIBAL lived and where he was having a party attended by about twenty people including the three co-accused (IBRAHIM and the two brothers). ABOU-JIBAL took the NASSOUR brothers to the basement car park of the building in a lift.

4. As the three men left the lift, Robin NASSOUR led the way

followed closely behind by Faouzi ABOU-JIBAL, with George NASSOUR following closely behind him. The three men started walking up the ramp in the car park. As that occurred the co-accused [PR], [KR] and Michael IBRAHIM walked towards the point where the top of the ramp meets a flat area between ramps. George NASSOUR became upset on seeing the three accused and started calling out words to the effect that this was a set up. At around this time, Faouzi ABOU-JIBAL produced a knife that he had previously kept concealed on his person and stabbed George NASSOUR to his upper rear right leg. He then went to stab George NASSOUR a second time, but George NASSOUR managed to pull him away. The knife was described by George NASSOUR as a fancy knife with a silver handle and shiny blade about thirty centimetres in length. A knife matching this description was subsequently recovered from the Bay near the Meriton apartment complex by police divers. Occupants of the units had seen a man throwing something into the water shortly after the events the subject of the present manslaughter charges. A former fiancée of ABOU-JIBAL, by the name of Shayda BASTANI RAD has identified this knife as one she bought him from the internet site Ebay and gave to him on 22nd or 23rd December 2005.

5. Immediately after he was stabbed, George NASSOUR saw the accused [KR], [PR] and Michael IBRAHIM surrounding Robin NASSOUR, who was still standing up at this point. George NASSOUR then ran away down the ramp, but returned to see all four men around Robin NASSOUR punching and kicking him. Robin NASSOUR was lying on the ground at this stage. During this attack, George NASSOUR believes he saw something silver being held by one of the accused, which was subsequently thrown at him. He believes this object was a knife. However police subsequently recovered the silver casing of a mobile telephone on the stairway in the area where George NASSOUR had been standing. Subsequent expert fingerprint examination located a palm print belonging to the accused Michael IBRAHIM on this phone casing. The deceased was found to have suffered blunt force injuries to his head consistent with being hit with an object such as a mobile telephone during the attack on him. During the attack on the deceased Robin NASSOUR, he was stabbed by Faouzi ABOU – JIBAL in the left thigh. This stab wound damaged the deceased’s left femoral artery and vein causing loss of blood which led to his death anywhere up to fifteen minutes after the injury was inflicted. There is no evidence of precisely when this fatal stab wound was inflicted during the course of the attack. The deceased also suffered a stab wound to his left shoulder, being a slash type injury. It measured approximately 75mm (3 inches) in length. Again, there is no evidence of precisely when and how this wound was inflicted during the attack.

6. The deceased suffered other blunt force injuries during the

attack upon him. These included lacerations to the head and above his left eye. He also suffered abrasions to his forehead, above his right eyebrow, at the tip of his left elbow, on his right arm and bruising to his left wrist and right legs (sic). These abrasions and bruises are consistent with being inflicted by kicks and punches. The blunt force injuries are consistent with being inflicted by a hard object such as a mobile phone or handle of a knife.

7. The accused stand to be sentenced for the offence of manslaughter by unlawful and dangerous act on the basis of an extended joint criminal enterprise. They were parties to a joint criminal enterprise with Michael IBRAHIM and Faouzi ABOU-JIBAL to unlawfully assault Robin NASSOUR in such a way as to cause him physical injury falling short of grievous bodily harm. They first became aware of the knife at, or immediately after, the time ABOU-JIBAL stabbed George NASSOUR. At this time they foresaw the possibility that Faouzi ABOU-JIBAL might use the knife again to stab Robin NASSOUR and to cause him some harm falling short of grievous bodily harm.

9 I make findings of fact in accordance with the agreed facts for the purpose of sentencing the offenders. As the facts are the same for all of the offenders and it is agreed that each is equally culpable in terms of his role, the findings I make as to the commission of the offence and its objective seriousness will be the same as those made in respect of the offender Michael Ibrahim.

10 Paragraph 7 of the agreed facts discloses that the offenders stand to be sentenced for the offence of manslaughter by unlawful and dangerous act on the basis of an extended joint criminal enterprise. Counsel for the offenders contended that the offence of manslaughter to which their clients have entered pleas of guilty is at the lower end of the scale of objective seriousness.

11 The offenders’ offending did not involve an intention to kill or to inflict grievous bodily harm upon the deceased or reckless indifference to human life. There is no suggestion that any of the offenders stabbed the deceased. It was their intention that they and Faouzi Abou-Jibal (Abou-Jibal) would assault Robin Nassour in such a way as to cause him physical injury falling short of grievous bodily harm. None of the offenders was armed with a weapon. However, each of the offenders had become aware of the knife in Abou-Jibal’s possession at, or immediately after, the time Abou-Jibal stabbed George Nassour to his upper rear right leg and then went to stab him again. The knife was described by George Nassour as having a silver handle and shiny blade about 30 centimetres in length.

12 The offenders were then aware that Abou-Jibal would participate with them in the assault upon the deceased whilst he was armed with this knife. Furthermore they foresaw the possibility that Abou-Jibal might use the knife again to cause the deceased some harm falling short of grievous bodily harm. They did not desist but with this knowledge each of them participated in a brutal and cowardly attack upon the deceased. This carries with it, in my opinion, a very significant degree of criminality. It is not in these circumstances a mitigating factor as Mr Dunn submitted that the offenders were unarmed and the blow that was struck by Abou-Jibal was to a “non-vital” part of the body of George Nassour.

13 The offenders surrounded the deceased. They with Abou-Jibal punched and kicked him whilst he lay on the ground. The blunt force injuries, lacerations, abrasions and bruising suffered by the deceased make evident the violence to which he was subjected. As a consequence of being confronted by four attackers, the deceased was in the position that he could not defend himself against being stabbed with a knife. The deceased was stabbed twice by Abou-Jibal. It was the stab wound to the left thigh which damaged the left femoral artery and vein causing loss of blood which led to his death.

14 The Crown invited me to find that an aggravating factor was that “the offence was part of a planned or organised criminal activity”: s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (Crimes (SP) Act). Whilst the offenders did not plan the use of a knife, the Crown contended that the unlawful and dangerous act was pre-planned involving as it did Abou-Jibal taking the deceased and his brother to a car park area away from witnesses where the offenders were waiting. Counsel for each of the offenders submitted that the Court ought not be satisfied that this aggravating factor exists in this case. Each argued that the assault upon the deceased was spontaneous.

15 Mr Richter submitted in particular that there is no sufficient evidence of the formation of an intent to assault anyone prior to George Nassour kicking up a fuss in a situation in which there was a meeting to resolve a perceived conflict. He said so far as the deceased was concerned “we know that he kept walking up to the ramp whilst George is calling out because the assault takes place at the top of the ramp and Robin is walking up there. Now, as to why or how, perhaps he had Dutch courage; I know not, we know not”. Mr Richter referred to a cocktail of some drugs in the blood of the deceased “that might give some Dutch courage at the time of his death”. (POS 18/1/08 p 54 L1-17). He argued that the proposition that his client was there to receive an apology could not be rejected.

16 There is no evidence that the offender Ibrahim was in the car park to receive an apology. It is an agreed fact that Abou-Jibal had asked the Nassour brothers to attend the Meriton Apartments to attempt to settle the dispute perceived to exist between them and Ibrahim. There is no evidence that the deceased continued to walk towards the offenders after his brother had been stabbed. Furthermore, there is no evidence from which it may be inferred that the deceased did anything to provoke the attack upon him by the offenders. There is no evidence in the proceedings on sentence that there was a cocktail of drugs in the blood of the deceased nor is there evidence of the affect that drugs might have had upon him. In any event the suggestion that the deceased provoked the attack upon him by the offenders after his brother was stabbed is plainly implausible.

17 The Crown must prove beyond reasonable doubt that the offenders had agreed with Abou-Jibal that he would bring the Nassour brothers into the basement car park where Robin Nassour would be unlawfully assaulted in such a way as to cause him physical injury falling short of grievous bodily harm. The Crown must exclude as a reasonable possibility that the assault by them upon the deceased was spontaneous. The only rational inference to be drawn from the combination of the taking of the Nassour brothers to the basement car park, the three offenders walking towards the point where the top of the ramp meets a flat area between the two ramps, George Nassour’s upset on seeing the offenders, the failure by the offenders to desist after they became aware of the knife, the lack of provocation by the deceased, the immediacy of the offenders surrounding the deceased after George Nassour had been stabbed and the violent attack with Abou-Jibal upon the deceased which then followed is that it had been previously agreed that Robin Nassour was to be unlawfully assaulted and it was part of the plan to assault him that he was to be brought down into the basement car park. It is not a reasonable possibility that the agreement to unlawfully assault Robin Nassour was spontaneously formed after George Nassour was stabbed by Abou-Jibal.

18 The agreement to assault the deceased in such a way as to cause him physical injury falling short of grievous bodily harm was pre-planned. The agreement to continue to participate in the assault upon the deceased although Abou-Jibal was armed with a knife was not. It was spontaneously formed after the offenders became aware of the knife at, or immediately after, the time Abou-Jibal stabbed George Nassour. At this time they foresaw the possibility that Abou-Jibal might use the knife again to stab the deceased and to cause him some harm falling short of grievous bodily harm. In R v Wickham [2004] NSWCCA 193 the importance of making findings under s 21A in accordance with the words of the provision was stressed. Although the assault was pre-planned, I am not satisfied that the offence of manslaughter was part of a planned criminal activity in the sense envisaged in s 21A(2)(n) of the Crimes (SP) Act. However, the fact that it had been previously agreed that the deceased was to be assaulted in such a way as to cause him physical injury falling short of grievous bodily harm and as part of the plan to assault him he was brought down into the basement car park increases the objective seriousness of the offence.

19 I do not agree with the contention that the offenders’ offending is at the lower end of the scale of objective seriousness. In my opinion, these are objectively serious offences of manslaughter by unlawful and dangerous act. It is an agreed fact that each of the offenders is equally culpable in the terms of his role in the offence.

20 The crime of manslaughter involves the felonious taking of human life and has always been recognised by the law as a most serious crime: R v MacDonald (unrep, NSWCCA 12 December 1995). The starting point in the present sentencing exercise as in all offences of manslaughter is that the life of Robin Nassour aged 34 years has been unlawfully taken: R v Blacklidge (unrep, NSWCCA 12 December 1995).

21 Various cases imposing sentences for manslaughter by unlawful and dangerous act were cited by counsel during submissions. It was contended by counsel for the offenders that the closest comparable case is R v Taiseni & Ors [2007] NSWSC 1090. With that contention I disagree. One of the distinguishing features of the present case is that the offenders participated in the assault upon the deceased in circumstances where they knew that Abou-Jibal was armed with a knife which he might use again to cause the deceased some harm falling short of grievous bodily harm. To participate in a joint act of violence in these circumstances carries with it, as I have said, a very significant degree of criminality.

22 In Regina v Forbes [2005] NSWCCA 377 Hall J analysed sentences which had been more recently imposed for manslaughter. His Honour’s consideration included offences of manslaughter by unlawful and dangerous act. Hall J recognised [at 191] there is no obvious trend or range discernible in terms of any particular sub-set of manslaughter offences. However, his Honour’s review and the cases cited by counsel have been of assistance in determining the appropriate sentences. Each case depends on its own facts.

23 I turn to the subjective cases of the brothers.

[KR]

24 [KR] was born in Sydney on 27 July 1980 and was 25 years old at the time of the offence. As the offender’s evidence during the proceedings on sentence was confined to the conditions in which he and his brother are serving their custody, his subjective circumstances are taken from the history in the pre-sentence report dated 30 November 2007, the letter from the sister of [KR] and [PR] (exhibit MT 4), and a chronology (exhibit ST 10).

25 The offender was educated at Merrylands High School which he left in 1996 when he was at the end of year 10. He worked for a kitchen cabinet maker until 1998 when he returned to school in an attempt to gain further education. He left school half way through the year and then variously worked as a labourer, tiler, mechanic and concretor.

26 [His sister] explains in her letter that the offender left school very early so that he could work and help their mother support the family. Their father had a very bad gambling habit which left nothing for the family. He was very abusive and focussed his abuse on her brothers especially if he had lost all his money gambling on horses. The family, she states, grew up struggling to have the simple things that most people take for granted.

27 Marco Battaglia, the author of the pre-sentence report, describes the offender as reporting a consistent work history until a motorcycle accident in September 2003. The offender purchased a home in February 2003 which he presently owns subject to a mortgage. From the exhibited medical reports, it appears that the offender suffered in the accident a complex facture of the right leg, head, shoulder and back injuries. His continuing disabilities resulting from the accident are detailed in the report of Dr C Costa (exhibit ST 3). The principal disability is a loss of function of the right leg. It was not suggested by Mr Dunn that the offender’s health is a factor tending to mitigate punishment and enlivens the principles in R v Smith (1987) 44 SASR 587: see also R v Badanjak [2004] NSWCCA 395. It was submitted that the offender’s physical condition is part of his general overall history: POS 30/11/07 T5 L55-58. The report from Dr Virginia Noel (Exhibit H) discloses that the offender has not complained of any symptoms relating to his injuries from the motorbike accident whilst in recent custody. Should he wish an orthopaedic review will be arranged for him. It is evident that the offender’s disabilities can be adequately managed by the prison medical staff and that imprisonment will not be a greater burden for him by reason of his physical condition.

28 I take into account the injuries and disabilities which the offender sustained in the accident and accept that he has been a hard worker. I accept that the offender’s personal circumstances as a child were difficult. I also accept that the offender would have had, as mentioned in the letters from the offender’s fiancée, and [his sister], work available to him in the concreting industry upon release. As a consequence of the risk to his safety and to that of his family that his assistance with the authorities entails, it will not be possible for him to take up that employment upon release.

29 A mitigating factor to be taken into account in determining an appropriate sentence is that “the offender has shown remorse for the offence….in any other manner”: s 21A(3)(i) of the Crimes (SP) Act. The amendments made to s 21A(3)(i) by the Crime (Sentencing Procedure) Amendment Act 2007 do not apply as the pleas of guilty in the present proceedings were accepted before 1 January 2008 and have not been withdrawn.

30 By his plea of guilty, the offender has accepted responsibility for his actions and the plea is an indication of his remorse and contrition. The Crown case of manslaughter against each of the offenders was, however, very strong. His plea of guilty, in my opinion, was a recognition of the inevitable. The strength of the Crown case, I emphasise, is relevant only to the evaluation of remorse: see R v Sutton [2004] NSWCCA 225 at [12].

31 [His fiancée] in her letter refers to the offender’s sorrow for what has happened and his great remorse for the deceased’s family. [His sister] recounts that her brothers have expressed to her “deep regret and remorse for their actions”. Mr Battaglia writes that the offender “expressed remorse, he did not attempt to minimise the gravity of his participation and stated that he wanted to avoid further traumatisation of the victim’s family, his family and himself that he accepts responsibility for his actions.” Having considered the statements attributed to the offender by his fiancée, his sister and in the pre-sentence report and the nature and extent of his assistance to police, I am satisfied that he is remorseful for his offending.

32 The offender’s criminal history, relevantly, reveals an offence of intimidating a police officer for which he was convicted and fined in the Local Court in August 2001 and an offence of assault occasioning actual bodily harm for which he was convicted and sentenced in the District Court on 4 December 2005 to the “rising of the Court”. The sentencing Judge’s reasons for the imposition of such a sentence which is normally regarded as lenient have not been provided. Although the offender’s criminal record discloses these offences, his record is not such that it disentitles him to considerations of leniency. His record of previous convictions is not a factor of aggravation.

33 It is evident from the pre-sentence report that there are no issues concerning alcohol or illicit substance abuse or the mental health of the offender. I note Mr Battaglia’s reference to the two institutional misconduct charges which have been established. He recommends that the offender be assessed for entry into the Violent Offenders Therapeutic Programme.

34 Mr Dunn submitted that the offender has good prospects for rehabilitation. In assessing the offender’s prospects of rehabilitation, it was of concern that the present offence was committed within a short time of the District Court sentence. Furthermore, it appears from the pre-sentence report, the custodial records and the chronology that the offender was in custody from January 2004 until May 2005 being bail refused for the “Malouf” offences which were subsequently dropped. It was also a matter of concern that the present offence was committed about eight months after his release. I have, however, considered the nature and extent of the offender’s assistance to police and the change that assistance will necessarily bring to his life. He will no longer be associated with the Nomads Outlaw Motor Cycle Club and has a strong incentive not to involve himself in the criminal community. I am of the opinion that the offender has good prospects of rehabilitation.

35 I conclude on the probabilities that he is unlikely to re-offend: s 21A(3)(g) Crimes (SP) Act.

[PR]

36 [PR] was born in Sydney on 16 January 1984 and was 21 years old at the time of the offence. His subjective circumstances are taken from the history (exhibit MT 1) provided to Mr Tim Watson-Munro, a consultant forensic psychologist, the letter previously mentioned from [his sister] (exhibit MT 4) and a pre-sentence report dated 30 November 2007. The offender did not give evidence during the proceedings on sentence.

37 The offender was educated at Merrylands High School which he left during year 9, shortly after his parents separated, to get a job in order to help support his mother. He worked at Parramar Kitchens, a kitchen cabinet making company, shortly after he left school.

38 He described to Mr Watson-Munro a poor relationship with his father alleging that he was subjected to considerable physical and psychological violence during the course of his parents’ marriage which is supported by the letter from [his sister]. He has a very positive relationship with his mother.

39 Enquiries from Penny Pickup, the author of the pre-sentence report, to the offender’s previous employer revealed that the offender was “intelligent, hard working, punctual and willing to learn”. There are no issues to be addressed with alcohol or illicit substance abuse.

40 Anthony Rizk for whom the offender worked for two years refers to the offender in most complimentary terms as does Khoder Sabra. Mr Sabra is prepared to offer the offender a position with his company upon his release.

41 The offender has never married but does have a young son who was born whilst he was in custody. He expressed the hope to Mr Watson-Munro to be able to have some involvement in the child’s life in due course.

42 Mr Watson-Munro recounts that the offender stated that he has problems with a heart valve. The offender told the psychologist that arising from this he had suffered episodes of tachycardia from about the age of 16 years. It was not suggested by Mr Ainsworth that the offender’s health is a factor tending to mitigate punishment and enlivens the principles in R v Smith (supra): see R v Badanjak (supra) nor is it suggested that the offender’s health has made the serving of his sentence different to any other offender: POS 27/2/08 p 8 L45-47.

43 Dr Virginia Noel states that at the time of reception into custody on 2 March 2006, the offender mentioned during the clinical assessment “heart valve regurgitation” as a health problem, but said he was not having treatment. He has not complained of any symptoms relating to heart trouble to clinical health staff nor has he requested a medical review. If he wishes to have a medical review, a cardiology review will be arranged. It is plain that the prison medical staff can adequately manage the offender’s health problems and that imprisonment will not be a greater burden for him by reason of his health.

44 The offender described to Mr Watson-Munro long standing symptoms of depression and anxiety which date back to his formative years. Mr Watson-Munro notes a serious medical condition which has caused the offender substantial anxiety and apprehension over the years. The psychologist opines that it would appear that the offender was suffering a broad spectrum of symptoms diagnosed as an adjustment disorder. There has been significant escalation, Mr Watson-Munro relates, in the offender’s symptomatology since the offence and it is apparent that “he remains highly anxious, depressed and hypervigilent” with very low self- esteem.

45 Ms Pickup states that the offender apparently threatened to commit suicide when his brother and Michael Ibrahim were removed from Parklea Correctional Centre.

46 I take into account the psychologist’s assessment of an adjustment disorder. It was not submitted [nor do I find] that the offender’s adjustment disorder impacted upon the sentence to be imposed in any of the four ways identified in R v Hemsley [2004] NSWCCA 228 at [33]-[36]. I accept that the offender was a hard worker and his personal circumstances as a child were difficult. He had, I accept, employment available to him upon release. As a consequence of the risk to his safety and to that of his family that his assistance with the authorities entails, it will not be possible for him to take up that employment upon release.

47 As I have stated at [29] a mitigating factor to be taken into account in determining an appropriate sentence is that “the offender has shown remorse for the offence……in any other manner”: s 21A(3)(i) of the Crimes (SP) Act. Like [KR], the offender has by his plea of guilty accepted responsibility for his actions and the plea is an indication of his remorse and contrition. The Crown case of manslaughter against each of the offenders was, however, very strong. His plea of guilty, in my opinion, was a recognition of the inevitable.

48 [his sister], as mentioned at [31] wrote of her brothers’ regret and remorse for their actions. Mr Watson-Munro states that the offender: ”is experiencing significant remorse in relation to this event…” (exhibit MT 1 p4) and “described chronic sleeplessness with him tending to ruminate about what occurred with what appears to be genuine remorse arising from the fact that he was a close friend of the deceased”: (exhibit MT 1 p5) It is accepted that the psychologist was mistaken when he referred to the offender being a close friend of the deceased. Ms Pickup refers to the offender stating that “he pleaded guilty to manslaughter to minimise the trauma to the victims and his own family”.

49 The offender was 21 years old when he committed the offence. I give weight to the fact that he was a young man at the time. This is not, however, a case where it is said that the offender’s immaturity contributed to the role that he played in the crime. The offender accepts that he is equally culpable with the other offenders. His acceptance of equal responsibility, although the youngest of the offenders, enhances the genuineness of his remorse. I take into account the statements attributed to the offender by his sister, the psychologist and in the pre-sentence report as demonstrating remorse for his offending. I have also considered the nature and extent of the offender’s assistance to police. I am satisfied that he is remorseful for his offending.

50 The offender’s criminal history discloses that he has one prior offence of intimidating a police officer for which he was convicted and fined in the Local Court in October 2003. I take into account as a mitigating factor that the offender does not have a significant criminal record: s 21A(3)(e) of the Crimes (SP) Act.

51 The absence of a significant criminal record is, however, diminished to a limited extent by the offence on the Form 1 which was an act of violence, the offender punching George Nassour in the head: see Regina v Stankovic [2006] NSWCCA 229.

52 I note Ms Pickup’s reference in the pre-sentence report to the two institutional misconduct charges which have been established. She assesses the offender as suitable for a medium level of intervention by the Probation and Parole service.

53 It appears from the offender’s custodial records that he was in custody from January 2004 until May 2005 being bail refused on charges which were subsequently dropped. In assessing his prospects of rehabilitation it was a matter of concern that the present offence was committed about eight months after his release. Mr Watson-Munro, however, states that the offender “has some positive aspirations for the future in the context of his strong desire to re-enter the workforce in order to assist his family” (exhibit MT 1 p 5). The psychologist opines that the offender is “…highly vulnerable to potentially adverse peer group dynamics…” ( exhibit MT 1 p 4). Having considered the nature and the extent of the offender’s assistance to police and the changes that assistance will necessarily bring to his life, the offender like his brother, has, in my opinion, good prospects of rehabilitation. He will no longer be associated with the Nomads Outlaw Motor Cycle Club and has a strong incentive not to involve himself in the criminal community.

54 I conclude on the probabilities that he is unlikely to re-offend: s 21A(3)(g) Crimes (SP) Act.

The pleas of guilty and assistance

55 On Friday 5 October 2007 [KR] and [PR] entered pleas of guilty to an indictment specifying a single count of manslaughter. They had been arraigned with Michael Ibrahim before Bell J on 4 May 2007 when they had pleaded not guilty to a count of murder and a count of malicious wounding of George Nassour with intent to do grievous bodily harm to him. [PR] had also pleaded not guilty to a charge that he assaulted George Nassour on or about 1 January 2006. This count is now included on the Form 1. The Court was informed by Ms Crown on 5 October 2007 that a no-bill was to be entered in respect to the brothers in relation to the count of malicious wounding.

56 The offenders’ trial on the counts upon which they had been arraigned before Bell J had been listed to commence on Monday 2 October 2007. A jury panel, however, was not required to enable preliminary matters to be raised. Ms Crown on that day apprised the Court of ongoing discussions with counsel for the offenders which resulted in the plea to manslaughter by the brothers on 5 October 2007. During sentencing submissions Ms Crown explained that there had been discussions with counsel for the brothers “probably a month, possibly two months before the trial in which there were clear offers made on behalf of the to plead”: POS 18/1/08 p 45 L 27-32.

57 There is conflicting evidence from Mr Galloway, the solicitor who then acted for the brothers, on the one hand and Ms Dobbs, a solicitor with the Office of the Director of Public Prosecutions, who was then involved in this case, on the other as to whether an offer was made on behalf of the brothers to plead guilty to manslaughter at the time of the committal proceedings. Shortly stated, it was Mr Galloway’s evidence that he had a clear recollection of having a conversation with Ms Dobbs in her office at Burwood on the day of the committal in which he informed her he had instructions to put an offer of manslaughter. Ms Dobbs response was that she believed “they had a strong case for murder; that she would not recommend it”: POS 30/11/07 p 17 L 52-54. Mr Galloway then formed the view that he was wasting his time pressing it any further. Ms Dobbs recalled, however, that Mr Galloway approached her and indicated “that his clients, [PR] and [KR] might be prepared to plead to manslaughter and did I think that the Crown would accept such a plea” to which she believed she said “not at this stage”. She believed she told him it was a matter for the Supreme Court arraignments prosecutor: POS 18/1/08 p 5 L 25-40. If a formal offer had been made to her, Ms Dobbs said, she would have briefed the Supreme Court arraignment Crown prosecutor with it which she did not do because she did not “regard it as a firm offer”: POS 18/1/08 p 9 L 22.

58 Neither solicitor made, it seems, a file note of the conversations. I am not persuaded on the balance of probabilities that a firm offer was made to plead guilty to manslaughter. It is surprising, to my mind, that if the brothers’ solicitor had firm instructions, a plea of guilty to manslaughter was neither articulated before the Magistrate at the time of committal nor upon arraignment before Bell J. Furthermore, it is surprising that such an offer was not confirmed in writing to the Office of the Director of Public Prosecutions or to the Supreme Court arraignments prosecutor. I prefer and accept the evidence of Ms Dobbs.

59 It might have been, however, that if some interest had been exhibited by Ms Dobbs about the possibility of the acceptance of a plea to manslaughter that a formal offer might have been made before the discussions between Ms Crown and counsel for the brothers commenced. A complicating factor in the negotiations between the Crown and counsel was the second count which was ultimately no-billed. I take these matters into account as a matter of fairness in assessing the utilitarian value of the pleas. The trial was estimated to take some four weeks.

60 It must be stated that these pleas were not entered at the first available opportunity and the discount for the utilitarian effect of the pleas is not to be assessed at the top of the range of 10 to 25 per cent: see R v Thompson; R v Houlton (2000) 49 NSWLR 383. The utilitarian effect of the pleas is more than that of the plea entered by Michael Ibrahim as they were entered at an earlier stage. I do not propose to identify a discrete discount for the pleas of guilty as a single combined discount will be given for the pleas and assistance to authorities.

61 Section 23(1) of the Crimes (SP) Act permits a court to impose a lesser penalty than it would otherwise impose, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to …any other offence. A lesser penalty imposed under s 23(1) must not be unreasonably disproportionate to the nature and circumstances of the offence for which the offender is to be sentenced: s 23(3) Crimes (SP) Act. Section 23(3) reflects the bottom line in relation to a discount for assistance to authorities beneath which a sentence cannot legitimately be set: SZ v Regina [2007] NSWCCA 19 per Howie J at [4].

62 The evidence of assistance is in the confidential affidavits and other evidence which is subject to orders which preserve the confidentiality of that material. The necessity for confidentiality requires that I do not provide in these sentencing remarks the details of the assistance. Nevertheless some summary must be given.

63 The assistance which has been provided by each brother concerns matters of a most serious nature which are unrelated to the present offence. Letters of assistance address those matters in s 23(2)(a-j) of the Crimes (SP) Act to which the Court is to have regard in deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes. The content of the letters of assistance is verified as being reliable by appropriate affidavits. Evidence was also given by Detective Sergeant Chambers and Senior Constable O’Donohue during the proceedings on sentence. Senior Constable O’Donohue’s evidence on 12 August 2008 concerned ongoing assistance. I act upon the letters of assistance and the evidence of the police officers given before me in assessing the significance of the offenders’ assistance. Moreover, in one of those matters each of the offenders has entered into a written undertaking to give active co-operation, including the giving of truthful and frank evidence. The value of the assistance provided in the other matters has not been similarly enhanced as each of the offenders has declined to enter into a written undertaking due to concern for their own safety and that of members of their family. I am satisfied that the information that has been given is considered by the authorities to be reliable and that the offenders have provided a high level of assistance to the police in the investigation of the matters which are referred to in the confidential material.

64 As to the timelines of the assistance, I take into account that police were contacted on the offenders’ behalf in December 2007. It was then indicated that they were prepared to provide assistance. They have been in custody since 3 March 2006 for the present offence.

65 Following upon the offers to provide assistance, each offender has been detained in protection and because of this there has been added hardship associated with the circumstances of their detention. I have no doubt, on the evidence, that they will remain in protection during the whole of their sentences and the conditions of their detention will be more difficult than for other prisoners in the general prison population. As a result of the assistance provided and undertaken to be given, there is a real risk of injury to each of the offenders and to members of their family. They will all be at risk of injury for an indefinite period of time. It appears likely that upon release, they will be placed on witness protection.

66 The Crown submitted that the assistance was of a high order even before the undertaking to provide future assistance was given. A combined discount, the Crown contended, above 50 per cent would not be appropriate as the discount for the plea would not amount to 25 per cent. The component for future assistance would only be the Crown submitted a small proportion of the percentage of the overall assistance.

67 During submissions, Mr Ainsworth at one time suggested that 50 per cent was in effect the ceiling for a combined discount for a plea of guilty and assistance. With respect, the Court of Criminal Appeal has recognised that there will be cases in which a combined discount of more than 50 per cent is called for, although those cases will be comparatively rare: see R v Sukkar [2006] NSWCCA 92; SZ v Regina. Mr Ainsworth also made reference to consideration of an additional discount for the information supplied to police in accordance with the principles in R v Ellis (1986) 6 NSWLR 603 at 604. The information disclosed in the present case is of a different character to that in Ellis where voluntary disclosure was made by the offender of his involvement in armed robberies of which the police had no knowledge. An added discount, in my opinion, is not warranted in the present case in accordance with the principles in Ellis.

68 I assess for each offender a combined discount for the plea and assistance of 50 per cent of which 10 per cent is specified for the future assistance each has undertaken to give in accordance with the written undertaking. I do not regard the promise of future assistance as being insignificant. Each offender must realise that if he defaults in giving the assistance he has undertaken to give, he will face the prospect of a readily calculable increase in the sentence that is to be imposed today.

69 Victim impact statements of Amelia Nassour, the deceased’s mother, Lilian Nassour and Paula Nassour, the deceased’s sisters, and George Nassour were read to the Court. The contents of the statements cannot be used by me to increase the offenders’ sentences: R v Previtera (1997) 97 A Crim R 76. I acknowledge the grief and distress of the deceased’s family and express on the community’s behalf its sympathy and compassion for them.

70 It is agreed that [KR] and [PR] have been in custody for the present offence since 3 March 2006. Accordingly, the date of commencement of their sentences will be 3 March 2006.

71 It is necessary to consider the principle of parity of sentence: Lowe v The Queen (1984) 154 CLR 606. The undiscounted starting point of Michael Ibrahim’s sentence was 11 years. His different subjective case required a starting point which was higher than the starting points of the sentences to be imposed on the brothers.

72 The objective seriousness of the offence on the Form 1 is not such that there should be, in my opinion, a significant increase in the length of the sentence to be otherwise imposed on [PR] for the offence of manslaughter.

73 Whilst there are differences in the subjective cases of [KR] and [PR], I conclude on balance that the starting point for their sentences should be the same. The appropriate undiscounted starting point is 10 years 4 months. The sentences are reduced by 50 per cent to 5 years 2 months.

74 Counsel for [KR] and [PR] contended that special circumstances justifying a departure from the statutory ratio should be found due to the time the brothers spent in custody for offences which were not proceeded with. I referred to these matters at [34] and [53]. Counsel were unable to cite any authority where special circumstances have been considered to be present in similar circumstances. The general principle is that, save in exceptional circumstances, a period which a person has spent in custody in respect of an unrelated offence, should not be taken into account: Huntington v Regina [2007] NSWCCA 196. The present is not an exceptional case and I do not find special circumstances by reason of the time spent in custody for the offences which were not proceeded with.

75 Considerations of parity require that regard be had to the actual time that Michael Ibrahim must spend in custody for the offence: Postiglione v The Queen (1997) 189 CLR 295. After special circumstances were found, a non-parole period of 6 years 6 months was imposed.

76 It must, however, be borne in mind that special circumstances are not to be found for the same reasons that the sentence was reduced for assistance to police as to do so would amount to double counting: SZ v Regina at [11]. The ultimate constraint upon the discretion to find special circumstances is that the non-parole period must itself appropriately reflect the criminality involved in the offence: R v Simpson (2000) 53 NSWLR 704 per Spigelman CJ at [13].

77 I find special circumstances being that the offenders’ rehabilitation upon release will be assisted by a longer period under supervision and a slight adjustment has been made to the statutory ratio to reflect that finding. Any greater adjustment would result in a non-parole period which does not appropriately reflect the gravity of the offence. Whilst it might be difficult for the brothers to be supervised by Probation and Parole if they go on witness protection upon release, it seems to me that they should not be deprived of a finding of special circumstances which otherwise would have been made but for their assistance to police.

78 [KR] for the manslaughter of Robin Nassour I convict you. I sentence you to a term of imprisonment with a non-parole period of 3 years 7 months which is to commence on 3 March 2006 and is to expire on 2 October 2009. I set a balance of term of 1 year 7 months which is to commence on 3 October 2009 and is to expire on 2 May 2011.

79 The earliest date of eligibility for your release to parole is 2 October 2009.

80 [PR] for the manslaughter of Robin Nassour I convict you. I sentence you to a term of imprisonment with a non-parole period of 3 years 7 months which is to commence on 3 March 2006 and is to expire on 2 October 2009. I set a balance of term of 1 year 7 months which is to commence on 3 October 2009 and is to expire on 2 May 2011.

81 The earliest date of eligibility for your release to parole is 2 October 2009.

**********