R v Krivosic (No. 7)

[2022] NSWSC 507

Supreme Court

New South Wales

Medium Neutral Citation:

R v Krivosic (No. 7) [2022] NSWSC 507

Hearing dates:

18 February 2022

Date of orders:

29 April 2022, amended on 6 May 2022

Decision date:

29 April 2022

Jurisdiction:

Common Law - Criminal

Before:

Johnson J

Decision:

The Offender is sentenced to imprisonment for 28 years comprising a non-parole period of 21 years commencing on 13 July 2019 and expiring on 12 July 2040, with a balance of term of seven years commencing on 13 July 2040 and expiring on 12 July 2047.

The earliest date upon which the Offender will be eligible for release on parole is 13 July 2040.

Catchwords:

CRIME – sentence – murder – offender found guilty following trial by jury – victim shot by offender – assessment of objective gravity of offence – offender took loaded firearm to premises where victim present – offender angered by victim’s violent conduct towards friend of offender - single shot fired followed by physical attack upon victim – offender acted with intention to cause really serious bodily injury but not to kill – finding of upper mid-range objective gravity – substantial moral culpability – offender on parole at time of offence for firearm offence – importance of specific and general deterrence – absence of contrition and remorse – substantial term of imprisonment imposed

CRIMINAL PROCEDURE – agreed error in commencement date – slip rule applied – commencement date of sentence varied

Legislation Cited:

Crimes (High Risk Offenders) Act 2006

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10

Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34

CC v R; R v CC (2021) 289 A Crim R 453; [2021] NSWCCA 71

Charbaji v R [2019] NSWCCA 28

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hall v R [2017] NSWCCA 260

Krivosic v R [2017] NSWCCA 167

R v A1 (No. 6) [2019] NSWSC 1581

R v AB [2021] NSWSC 849

R v Callaghan (2006) 160 A Crim R 145; [2006] NSWCCA 58

R v Dunstall (No. 4) [2018] NSWSC 1923

R v French [2021] NSWSC 1531

R v Halloun [2014] NSWSC 1705

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No. 18) [2021] NSWSC 1343

R v May (No. 7) [2008] NSWSC 971

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v Shephard [2020] NSWSC 141

R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130

R v Tangi (No. 12) [2020] NSWSC 547

R v Turnbull (No. 24) [2016] NSWSC 830

Sorensen v R [2016] NSWCCA 54

Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Texts Cited:

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Category:

Sentence

Parties:

Regina (Crown)
Marko Krivosic (Offender)

Representation:

Counsel:
Ms M England; Mr BG Page (Crown)
Mr N Steel (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Jamieson Criminal Law (Offender)

File Number(s):

2018/228553

Publication restriction:

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REMARKS ON SENTENCE

1. JOHNSON J: The Offender, Marko Krivosic, stood trial by jury in this Court commencing on 15 November 2021 on an indictment charging him with the murder of George Nassif at Warwick Farm on 22 July 2018. On 3 December 2021, the jury found the Offender guilty of murder.

2. A sentencing hearing proceeded on 18 February 2022 after which the Offender was remanded for sentence.

3. The maximum penalty for the offence of murder is life imprisonment: s.19A(1) Crimes Act 1900. The offence carries a standard non-parole period of imprisonment for 20 years: s.54A Crimes (Sentencing Procedure) Act 1999.

Applicable Principles Concerning Fact Finding on Sentence After Trial

4. It is the responsibility of the Court to determine the facts on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [4]-[5]. In finding facts, the primary constraint upon the Court is that the view of the facts to be adopted for the purpose of sentencing must be consistent with the verdict of the jury. Some of those facts will have emerged in evidence at the trial, others may only emerge at the sentencing hearing. Findings of fact made against the Offender on sentence must be arrived at beyond reasonable doubt: Cheung v The Queen at [14]-[15].

5. On the other hand, if there are matters which the Offender seeks to rely upon to reduce his penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28].

6. A sentencing Judge must do his or her best to find the facts which concern the nature and gravity of the offending, including the facts which inform an offender’s moral culpability. However, it may not be possible for the Judge to ascertain everything which is relevant: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70].

7. Not every matter urged on a sentencing Judge has to be, or can be, fitted into categories of aggravating or mitigating circumstances. There are matters of human behaviour that lie between those extremes: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [22]. The Court may be unpersuaded of matters urged in mitigation or aggravation. Of course, the absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation: Weininger v The Queen at [24].

The Sentencing Hearing

8. At the sentencing hearing on 18 February 2022, the Crown tendered a volume of documentary material (Exhibit A) together with two photographs which had been in evidence at the trial (Exhibit B). A bundle of documents was tendered on behalf of the Offender (Exhibit 1).

9. In addition, both the Crown (MFI1) and counsel for the Offender (MFI3) provided helpful written submissions on the question of sentence.

Facts of Offence

10. There was no issue at the trial that Mr Nassif died as a result of the discharge of a firearm then held by the Offender. The issues at trial were whether there had been an accidental discharge of the firearm and, if the firearm had been discharged deliberately by the Offender, whether he acted with an intention to kill or, at least, an intention to inflict really serious bodily injury to Mr Nassif.

11. The verdict of the jury reflected a finding that the Offender discharged the firearm deliberately with, at least, an intention to inflict really serious bodily injury to Mr Nassif.

12. Much of what follows was not disputed at the trial. The findings which the Court will make on sentence reflect the standards of proof upon the Crown or the Offender as explained earlier in these remarks (at [4]-[5]).

Background

13. The background to the events of 22 July 2018 may be found in associations formed with other people by both the Offender and Mr Nassif.

14. Mr Nassif was born in July 1972 and was 46 years old at the time of his death. He had been in a relationship with Taylah Papadellis, with whom he lived, for about four-and-a-half years. During the course of his relationship with Ms Papadellis, she had a sexual relationship with Andre Marques in 2018. Mr Marques was a friend of the Offender. Mr Nassif learned of the relationship between Ms Papadellis and Mr Marques and was angered by it.

15. There was unchallenged evidence given at the trial that, some months prior to 22 July 2018, Mr Nassif had detained Mr Marques in an apartment and had used physical violence upon him as a consequence of the sexual relationship between Mr Marques and Ms Papadellis. Evidence was given at the trial that the acts of Mr Nassif towards Mr Marques had been recorded and the video of that incident had been observed by others. In addition, there was evidence that Mr Nassif had demanded money from Mr Marques in exchange for no further violent action being taken by Mr Nassif towards him.

16. There was evidence at the trial that the Offender came to hear of what Mr Nassif had done to Mr Marques, including his use of violence against him whilst Mr Marques was detained in an apartment for that purpose.

Events on 21 July 2018 and the Early Part of 22 July 2018

17. On Saturday, 21 July 2018, AB went to the Offender’s house at Warwick Farm, where AB had been several times before. AB was looking for a car to buy and the Offender had cars for sale. After looking at a couple of cars, the Offender and AB went into the city together at about 4.00 am or 5.00 am on 22 July 2018.

18. Afterwards, they drove back to Warwick Farm and went to SJ’s unit in George Street, Warwick Farm, arriving there at about 7.21 am. They were buzzed into the carpark and parked downstairs in the basement carpark. The Offender and AB went upstairs to SJ’s unit. The Offender knew that SJ was there and her friend, Alana Delforce, was also present.

19. After some time, the Offender and AB left SJ’s unit. The Offender travelled to his home. AB returned to his own home, before returning to the Offender’s home at Warwick Farm for the purpose of buying a car.

Altercation Between Mr Nassif and Mr Marques on 22 July 2018

20. At about 4.30 pm on Sunday, 22 July 2018, Mr Nassif and his friend, Mark Salama, drove into the carpark of SJ’s apartment complex in Warwick Farm. Mr Nassif travelled in the lift to SJ’s apartment and was followed soon after by Mr Salama.

21. At 4.45 pm, Mr Marques, Erica Krupiljanin and Mirko Pajic, drove into the carpark of the unit complex. They left the vehicle and met Ms Papadellis in the carpark. They all entered the lift and travelled together to the floor where SJ’s apartment was located. Ms Papadellis, Ms Krupiljanin and Mr Pajic entered SJ’s unit.

22. Mr Nassif had answered the door to the unit. When he saw Mr Marques, Mr Nassif pushed him aside as he tried to enter the unit and said “No, I need to talk to you first”. Mr Nassif asked Mr Marques in an aggressive tone of voice “Why have you been hiding, why have you been avoiding me?”. Mr Nassif demanded money from Mr Marques and said “You fucked my Mrs”. In the corridor outside SJ’s unit, Mr Nassif punched Mr Marques in the face, knocking him to the ground. Mr Nassif then kicked Mr Marques. Mr Marques said that he had money in the car, but that it was not his, saying that it was the Offender’s money.

23. At that stage, Mr Pajic, Ms Krupiljanin, Mr Salama and Ms Delforce came out of SJ’s unit into the corridor and Mr Nassif stopped kicking Mr Marques.

24. Ms Delforce walked back into SJ’s unit and called the Offender on her mobile phone. She said “I’m at [SJ’s], hurry, they’re bashing Andre”. The Offender said he had other things to deal with and he did not have time for this and hung up on her. Ms Delforce then left the unit and went down to the carpark.

25. In the meantime, Mr Marques, Mr Salama, Mr Pajic and Ms Krupiljanin had travelled down in the lift to the carpark. There, Mr Marques gave Mr Salama $100.00 in cash that he retrieved from the car for the purpose of giving the money to Mr Nassif. Thereafter, Mr Marques, Mr Pajic and Ms Krupiljanin got into the car and drove out of the carpark.

26. Mr Nassif came down in the lift and ran after the car, before walking back to the lift with Mr Salama and returning to SJ’s unit. There, Mr Nassif sat on the couch with SJ and Ms Papadellis.

The Offender’s Response to the Phone Call from Ms Delforce

27. According to the evidence of AB (which I accept), the Offender took a phone call at his house that afternoon which I find was the call from Ms Delforce (see [24] above). After he took the call, the Offender looked stressed and annoyed and said to AB “I just want to pull someone up and have a few words with someone”.

28. The Offender went into his backyard and dug up a plastic bag which he had buried there. The plastic bag contained a loaded Browning .22 calibre pistol which the Offender had secreted previously in his backyard. After the call from Ms Delforce to the Offender at about 4.53 pm, Ms Delforce sent a text message to the Offender at about 4.55 pm which said “Please hurry”. The evidence of SJ was that she had heard Ms Delforce on the telephone to the Offender saying words to the effect “I’m at [SJ’s] quick, Andre’s getting bashed. He’s like five out”.

29. An issue arose at the trial as to whether a later text message from Ms Delforce was received by the Offender. The Crown argued that the later text message indicated that, in effect, the assault by Mr Nassif upon Mr Marques was over.

30. I am not satisfied that the later text message from Ms Delforce was actually received by the Offender. I am satisfied, on the balance of probabilities, that the Offender set out from his home to SJ’s unit in the belief that Mr Nassif had once again assaulted Mr Marques, and that the attendance of the Offender had been requested by Ms Delforce to assist Mr Marques in these circumstances. That said, the evidence demonstrates that, by the time the Offender and AB arrived at SJ’s unit block, Mr Marques and others had already left the premises (see [25] above).

31. The Offender requested his father to drive him and AB from Warwick Farm to Liverpool for the purpose of attending SJ’s unit. It is noteworthy that the Offender did not choose to drive his own vehicle which could be parked under SJ’s unit block, as he had done earlier that day.

32. I am satisfied that the Offender requested his father to drive the two men and drop them at a location some 200 metres from SJ’s unit block to facilitate the Offender’s arrival at the premises and reduce the prospect of the Offender being identified as he approached the building.

33. Before leaving his home at Warwick Farm, the Offender gave AB some latex gloves, which the Offender intended to utilise as part of a process to disguise the two men, and reduce the prospect of their being identified as they entered the unit block. This aspect does not assist the Offender and points strongly towards a planned desire on his part to enter the building for criminal purposes.

34. After being dropped off some distance from the building by the Offender’s father, the Offender and AB approached the outside door of the unit complex. The Offender pressed the buzzer for SJ’s apartment at about 5.11 pm. SJ answered the buzzer and the Offender said “It’s me”. At that time, the only persons in SJ’s unit were SJ, Ms Papadellis, Mr Salama and Mr Nassif.

35. According to SJ, after the Offender had buzzed her unit, she said to the people in the unit “It’s Marko, he sounds pissed. If you want to leave go down the fire escape”. The Offender rang the buzzer again and said “It’s me, open the fucking door” in a voice which I accept displayed anger. SJ pressed the button to open the door, thereby allowing the Offender and AB to enter the building.

36. At this point, the Offender asked AB for a latex glove which the Offender used to open the door to the apartment complex. The Offender and AB entered the lift bay. Both men put on white latex gloves because they did not want their fingerprints to be left at the scene. Before entering the unit complex, the Offender had put a black windbreaker over his face for the purpose of concealing his face, with only his eyes being visible. Both men then entered the lift for the purpose of travelling to the floor on which SJ’s unit was located.

37. In the lift, the Offender produced the pistol which had been concealed in his trousers and commenced to unwrap it from its plastic covering. It was only at this point that AB became aware that the Offender possessed the pistol. The Offender knew how to use the pistol and he was aware that it had ammunition in it and that it was already cocked and did not have the safety catch on.

38. When the lift stopped at the floor where SJ’s unit was located, the Offender walked ahead of AB. He was walking fast towards SJ’s unit. The Offender opened the door of SJ’s unit and walked inside followed by AB. The Offender was holding the pistol which he pointed in the direction of Mr Nassif. He fired the pistol once at Mr Nassif who was sitting on the lounge. This occurred within a few seconds of the Offender entering the unit.

39. There was a controversy at trial concerning words which SJ attributed to the Offender upon him entering the unit. SJ’s evidence differed in significant respects from what she had said on earlier occasions, both to investigating police and at an earlier trial in April/May 2021, where the jury was unable to agree upon a verdict.

40. Having regard to the evidence of SJ and the evidence of others who were in the unit at the time of the shooting, I am not satisfied to the criminal standard that the Offender said to Mr Nassif words to the effect “Die you dog”.

41. I am satisfied to the criminal standard that the Offender was angry when he entered the unit and that he discharged the pistol towards Mr Nassif with the intention of shooting him. I am satisfied to the criminal standard that there was no physical contact by AB with the Offender before the firearm was discharged. The Offender deliberately fired the pistol at Mr Nassif. The Offender fired the pistol once only. The bullet struck the left side of Mr Nassif’s back in the lower chest area causing significant blood loss. The bullet path was from back-to-front, left-to-right and was approximately horizontal.

42. After shooting Mr Nassif, the Offender walked over to him and tried to roundhouse kick him in the face, but missed because Mr Nassif was sliding down the lounge after being shot.

43. The Offender pistol whipped Mr Nassif once to the head, leaving a mark which was observed on autopsy.

44. I am satisfied to the criminal standard that, before departing the premises, the Offender did say to SJ, Ms Papadellis and Mr Salama words intended to warn them off telling the authorities what he had done. AB attempted to calm down the Offender saying to him “Let’s go man, let’s go, let’s go” in an effort to get the Offender out of the unit. The Offender and AB then left the unit.

Events in Unit After the Offender and AB Left

45. After the Offender and AB had fled the unit, a “000” call was made for an ambulance to attend. Ms Papadellis and Mr Salama attempted to help Mr Nassif, but he did not respond.

46. Ms Papadellis and Mr Salama departed the unit leaving SJ alone with Mr Nassif.

47. At 5.22 pm, police and paramedics attended SJ’s unit in response to the “000” call. As they entered the unit, they saw Mr Nassif lying on the floor. The paramedics noted a gunshot wound on his upper left back. Emergency treatment was attempted at the scene before Mr Nassif was taken by ambulance to Liverpool Hospital where surgery was undertaken. The surgeons who assessed Mr Nassif in the operating theatre were unable to detect any signs of cardiac activity and he was pronounced dead at Liverpool Hospital.

The Offender Flees from the Scene of the Crime

48. After leaving SJ’s unit, the Offender and AB took the lift back down to the foyer and tried to leave through the door to the lift bay, but were unable to open the door. The two men then walked over a garden bed and climbed over the fence out of the unit complex before separating.

49. The Offender fled the scene, first trying without success to get into the nearby unit of Adam Browning, before entering the unit of Adam Robertson, to whom the Offender paid cash for the use of Mr Robertson’s phone. The Offender’s flight from SJ’s unit complex was somewhat chaotic and disorganised.

The Offender’s Flight Interstate and Subsequent Arrest

50. Later that night, the Offender joined up with his girlfriend, Nina Gulic, before they travelled to Newcastle and then to Melbourne, Adelaide, Port Augusta, Coober Pedy, Port Augusta (again) and then Perth, before his eventual arrest in Perth on 6 August 2018.

51. It was entirely clear from the evidence given at trial that the Offender was fleeing to avoid apprehension for shooting Mr Nassif. However, the strong inference of consciousness of guilt which ought be drawn supports a finding of intention to cause really serious bodily injury, but does not take any finding beyond that to an intention to kill.

Police Search of Area Locates Items Discarded by Offender

52. The police cordoned off the area around the unit complex on the late afternoon of 22 July 2018 and searched the surrounding areas.

53. At about 7.00 pm, police attended a building in Lachlan Street, Liverpool, and located a black hooded jumper under an outdoor bench. This was the jumper that had been worn by the Offender when he shot Mr Nassif. The search of the area located at different premises in Lachlan Street, Liverpool, a blue and white shopping bag which contained two white latex gloves.

54. At 9.40 am on 23 July 2018, police located a white latex glove in a garden bed along the southern fence line at premises at Browne Parade, Liverpool, a short distance from SJ’s unit complex.

55. At 12.00 pm on 23 July 2018, police located the Browning .22 pistol with plastic and silver tape around its base in the bottom of a recycling bin at Lachlan Street, Liverpool.

56. I am satisfied that the Offender disposed of these various items in these different locations in an attempt to distance himself from the attack upon Mr Nassif in the hope that the items, having been disposed of at different locations, may not be discovered.

Findings Concerning the Offence

57. Submissions were made at trial, and again on sentence, as to findings which should be made concerning the circumstances of the shooting of Mr Nassif and the state of mind of the Offender at the time when the pistol discharged. I summarise my findings on sentence in the following way:

1. the Offender had armed himself, and took various steps to disguise himself, knowing that he intended to commit a serious act of violence upon Mr Nassif at SJ’s unit complex;

2. at the time when the Offender entered the unit, Mr Nassif was seated on the lounge with other persons and he did nothing to provoke the Offender at that time or to suggest that the Offender should take aggressive action towards him in defence of Mr Marques, the Offender or anyone else;

3. the Offender intentionally and deliberately discharged the pistol towards Mr Nassif intending to shoot Mr Nassif;

4. the Offender fired one shot only, even though the pistol contained other ammunition;

5. there was no physical contact between AB and the Offender until after the Offender had shot Mr Nassif, with AB’s actions being intended to prevent any further use of the pistol by the Offender;

6. the Offender was very angry when he shot Mr Nassif, with his anger being the product of his state of upset concerning Mr Nassif’s aggressive actions towards Mr Marques on an earlier occasion and on that day;

7. the Offender’s desire to cause at least really serious bodily injury to Mr Nassif was demonstrated from his intentional shooting of him once, followed by the physical attacks upon Mr Nassif after the shooting had occurred (the attempted kick and pistol whipping);

8. the Offender did not act with an intention to kill Mr Nassif on that day – he fired the pistol once only and then carried out further forms of physical attack before leaving the unit – an intention to kill, if it existed, could have been readily put into effect by shooting Mr Nassif more than once; and

9. the Offender’s planning to attend the unit complex, armed and disguised, and his departure from the building and subsequent flight, taken with his actions in SJ’s unit, provide powerful support for him intending to inflict at least really serious bodily injury to Mr Nassif, but does not call for a finding to the criminal standard that he intended to kill Mr Nassif when he discharged the pistol towards him.

58. I am satisfied to the criminal standard that the Offender had formed the intention to shoot Mr Nassif by the time that he produced the pistol in the lift, and as he entered SJ’s unit, with the shooting occurring almost immediately after the Offender entered the unit and observed Mr Nassif seated on the lounge.

59. The Offender shot Mr Nassif in anger because of Mr Nassif’s actions towards Mr Marques. There is no evidence of any other motive for the Offender to do harm to Mr Nassif, apart from the history of Mr Nassif’s grievance towards Mr Marques, including his assaults upon him and demands for money from him arising from the short sexual relationship between Mr Marques and Ms Papadellis.

60. Although it was these matters which motivated the Offender to attend the premises, Mr Marques was not present in SJ’s unit at the time the Offender entered the premises. The Offender was acting for reasons of punishment or retribution against Mr Nassif and not because of any then present state of mind to help Mr Marques. As it happened, Mr Marques had already left the building some time before.

61. Whatever the Offender may have believed had been happening to Mr Marques earlier that afternoon, in the form of an assault upon him by Mr Nassif and possibly others, by the time the Offender entered the unit, the only persons present were SJ, Ms Papadellis and Mr Salama with those persons and Mr Nassif all being seated on the lounge in circumstances which involved no threat at all to the Offender.

62. I am satisfied beyond reasonable doubt that the Offender shot Mr Nassif once with intent to cause really serious bodily injury, but not with an intention to kill. In my view, this finding arises from the evidence at the trial and is entirely consistent with the verdict of the jury.

Subjective Circumstances of Offender

63. The Offender was born in October 1990. He was 27 years old at the time of the offence and is now 31 years of age.

The Offender’s Criminal History

64. The Offender has a significant criminal history.

65. In 2009, he appeared at the Liverpool Local Court for offences of possessing an unregistered firearm and firing a firearm in or near a public place for which he was fined.

66. In 2010, the Offender appeared twice before the Parramatta Local Court for offences of possession of a prohibited drug for which he was fined and placed on a good behaviour bond.

67. On 28 November 2011, the Offender was sentenced at the Parramatta District Court for an offence of aggravated assault with intent to rob with a term of imprisonment for three years with a non-parole period of 15 months.

68. On 15 October 2012, the Offender was sentenced at the Downing Centre Local Court to 12 months’ imprisonment for offences of using an offensive weapon with an intent to commit an indictable offence, affray and furious driving. These sentences were confirmed on appeal to the Sydney District Court on 15 March 2013.

69. On 22 October 2015, the Offender was sentenced in the Liverpool Local Court for offences of driving whilst disqualified to a term of imprisonment for four months.

70. On 23 June 2016, the Offender appeared before the Wollongong District Court for an offence of supplying a prohibited drug for which he was placed on a good behaviour bond.

71. On 10 April 2017, the Offender was sentenced in the Parramatta District Court to a total effective sentence of imprisonment for four years and three months, with a non-parole period of two years and nine months for offences of unauthorised possession of a prohibited pistol, supplying a prohibited drug, dealing with property suspected of being the proceeds of crime, driving whilst disqualified and being involved in a police pursuit.

72. The Offender appealed successfully against those sentences to the Court of Criminal Appeal. On 14 July 2017, the Court of Criminal Appeal allowed the appeal and quashed the sentences, imposing in their place an aggregate term of imprisonment of four years with a non-parole period of two years and six months dating from 31 August 2015. The Offender was eligible for release on parole on 27 February 2018.

73. Accordingly, the Offender was on parole at the time of the commission of the present offence on 22 July 2018.

74. It is of assistance to refer to parts of the decision of the Court of Criminal Appeal, given that the Offender was subject to parole ordered by that Court at the time of the commission of the murder of Mr Nassif. In Krivosic v R [2017] NSWCCA 167, R A Hulme J (Basten JA and Harrison J agreeing) noted (at [24]) that the Offender was on bail at the time when he committed the offences subject to the appeal. R A Hulme J referred to subjective material concerning the Offender (at [25]-[27]):

“25   A psychologist's report was tendered in the sentencing proceedings. The applicant had been diagnosed with chronic post-traumatic stress disorder arising from the trauma he experienced during war in his country of birth (Croatia) which was rekindled by the experience of seeing the death of his friend in a road accident in about 2014. There were also diagnoses of anxiolytic use disorder (from the use of Xanax) and stimulant use disorder (from the use of ice and cocaine). All of these disorders were said to be in remission.

26   The applicant had completed the ‘Enough is Enough’ program while on remand. He claimed to have abstained from drug use in the eight months prior to sentencing. The psychologist noted that there had been positive steps towards rehabilitation but more was required and a treatment plan was proposed. This included parole supervision with regular drug screening, attendance at Narcotics Anonymous and any counselling that might be of assistance. The judge considered that counselling would also assist in relation to the post-traumatic stress disorder and associated symptoms. (ROS 14)

27   The judge noted that the applicant had strong support from his family and his partner and employment was available to him upon his eventual release from custody. There was evidence to the effect that the applicant had good prospects of rehabilitation, was remorseful in relation to his offending, and had a growing insight and maturity with determination to remain crime-free. (ROS 14).”

75. The Court found error in the sentence imposed for the pistol offence and moved to resentence the Offender. In that process, R A Hulme J said (at [62]-[66]):

“62   The judge's finding that the applicant's moral culpability was increased by virtue of the offences being committed while he was on bail was appropriate and has not been brought into question. Her findings as to the objective seriousness of the drug and pistol offences were not challenged either; nor could they be given that they were consistent with the submissions that had been made to her by the applicant's counsel. (e.g. POS 21.45; 23.3)

63   That finding in relation to the pistol offence was undoubtedly open to her Honour in circumstances where the pistol was loaded with six rounds of ammunition in the context of the applicant being in possession of drugs with a high purity, although in a relatively modest quantity, for the purpose of supply. As to the seriousness of the firearms offence in association with drug supply, see: R v Amurao [2005] NSWCCA 32 at [69]; Luu v R [2008] NSWCCA 285 at [32]; R v AZ [2011] NSWCCA 43; 205 A Crim R 222 at [76].

64   It is often stated, but bears emphasising, that general deterrence is a particularly important aspect in sentencing both for drug supply and for firearms offences: see, for example, Regina v Ha [2004] NSWCCA 386; R v Krstic [2005] NSWCCA 391 at [14]; Thalari v R (2009) 75 NSWLR 307 at [93]; and R v AZ at [73].

65   The findings made as to subjective matters were also not challenged except by some further evidence adduced by the Crown that it contended had a bearing upon the applicant's prospects of rehabilitation. It is to be recalled that the primary judge found that such prospects were ‘good’.

66   On instructions, former counsel for the applicant told the primary judge that his client had ‘been clean for eight months’ (POS 30.41); in other words he had not used drugs for that period. The sentencing judge made reference to this. (ROS 13). It may well have been a factor in her assessment that the applicant had good prospects of rehabilitation. However, the evidence adduced by the Crown in this Court showed that in the week following sentencing the applicant had committed three correctional disciplinary offences. They included possession of a drug on 15 April 2017 and failing to supply a urine sample on 16 April 2017.”

76. What was said in Krivosic v R at [64] (see [75] above) concerning the importance of general deterrence for firearm offences has resonance in sentencing the Offender for murder by use of a firearm, especially when the Offender was on parole at that time for a firearm offence, and other offences, as a result of the sentencing order of the Court of Criminal Appeal. The Offender has had a number of custodial disciplinary matters between 2019 and 2021, including possession of a drug or drug implements for which custodial penalties have been ordered. One of these infractions involved possession of a drug on 16 November 2021, at a time when the Offender’s trial was underway.

Community Corrections Reports Concerning Parole

77. A number of reports prepared by Community Corrections officers concerning the Offender’s response to parole were tendered by the Crown. A report dated 6 July 2018 observed that the Offender’s response to supervision had been “borderline” due to inconsistency in reporting and other issues.

78. The Offender was scheduled to attend the EQUIPS Foundation Program on 23 July 2018, but did not do so as, by that time, he had fled after shooting Mr Nassif the day before.

79. On 26 July 2018, the Offender’s parole was revoked by the State Parole Authority.

Psychological Report Concerning Offender

80. A report of Alison Cullen, psychologist, dated 24 January 2022 was tendered in the defence case on sentence. In addition, a letter dated 14 February 2022 from the Offender’s older sister, Sandra Stegnjiac, was tendered by the defence on sentence together with a letter dated 15 February 2022 from Nikolina (Nina) Gulic, the Offender’s partner at the time of the offence who has maintained her support for him. Ms Gulic gave evidence at the trial.

81. The Offender did not give evidence on sentence. However, the report of Ms Cullen was supported in a number of respects, including the account provided by the Offender’s older sister. In addition, Ms Cullen’s report echoed matters raised in the psychological report which was before the Court of Criminal Appeal in 2017 (see [74] above). Unless otherwise indicated, I accept the matters contained in Ms Cullen’s report for the purpose of sentence.

82. The Offender was born in Croatia and is the third child in a family of four children. His father was Serbian and his mother was Croatian. When war broke out in the former Yugoslavia in the mid-1990s, the Offender and his family fled Croatia for Serbia. The Offender, then aged five years, travelled on foot with his family for about one month, observing deceased people and other signs of hostilities along the way, including people being robbed and other scenes of brutality. After arriving in Serbia, the Offender’s family suffered hardship and faced difficulties in being accepted and making friends. The Offender stated that the family “didn’t fit in”. The Offender told Ms Cullen that he continued to experience flashbacks and nightmares relating to his childhood in Serbia.

83. The Offender’s family immigrated to Australia as refugees in 2000 when the Offender was 10 years old. The Offender struggled to make friends and feel accepted. He did not speak any English which compounded his sense of isolation and loneliness. The Offender was affected by the death of his best friend, Dragan Arcaba, in October 2014. Mr Arcaba died in a motor cycle accident for which the Offender blamed himself as he attempted unsuccessfully to persuade Mr Arcaba not to ride his motorcycle at that time. The Offender stated that he was sexually abused by a male school teacher when he was in Year 8. The Offender claims that, following this sexual abuse, he started not attending school and smoking cannabis to deal with his anger and grief. The Offender left school in Year 10 and worked with his father as a boilermaker for about six months. He then began working in gyprocking and plastering for a further three-to-four months before he ceased working as a result or his drug use. The Offender informed Ms Cullen that he began selling drugs to support his own drug habit.

84. The Offender has a long history of substance abuse and periods of incarceration. He informed Ms Cullen that, after his arrest in August 2018, he began smoking heroin in custody. He said that this was the first time that he had smoked heroin and he has since been placed on the Buprenorphine Program.

85. Ms Cullen expressed the opinion that the Offender satisfied the criteria for Post-traumatic Stress Disorder, Severe (Methylamphetamine-type) Stimulant Use Disorder and also Severe Sedative, Hypnotic or Anxiolytic (Xanax) Use Disorder. Ms Cullen observed that the Offender has recognised what was said to be the nexus between his drug use and offending misconduct and that he accepts that his underlying mental health issues and secondary drug misuse contributed to the present offence.

86. Ms Cullen indicated that the Offender requires intense trauma-informed psychotherapy in order to resolve underlying mental health issues and to enhance his prospects of long-term drug abstinence.

87. In the absence of evidence from the Offender, caution is required in assessing the Offender’s attitude and his understanding of his offending conduct. I am not prepared to make a finding favourable to the Offender concerning any suggested nexus between this offence and his mental health issues.

Objective Gravity of Offence and the Offender’s Moral Culpability

88. In sentencing for an offence, the Court should make an assessment of the objective gravity of the offence, including an assessment of where the offence lies on the spectrum of seriousness for that offence: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [19]; Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112].

89. The state of mind in which a murder is committed is directly relevant to the assessment of the objective seriousness of the offence: Charbaji v R [2019] NSWCCA 28 at [180].

90. Factors such as motive or provocation may be taken into account in this way. Regard may be had to factors personal to the Offender that are causally connected with, or materially contributed to, the commission of the offence including (if it be the case) a mental disorder or mental impairment. Motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Tepania v R at [112].

91. The Court should have regard as well to the associated issue of the Offender’s moral culpability: Tepania v R at [114]-[119].

92. In considering the objective gravity of the offence and the Offender’s moral culpability, the Court is considering a broader range of factors than those relevant to the technical concept of “objective seriousness” where the term is used, in the context of a standard non-parole period, in s.54B Crimes (Sentencing Procedure) Act 1999: Tepania v R at [110].

93. I have considered the submissions made on behalf of the Crown and the Offender with respect to the related topics of assessment of objective gravity and the Offender’s moral culpability for the offence.

94. The Crown submitted that the offence of murder in this case should be characterised as being above the mid-range of objective gravity for offences of this type and that the Offender’s moral culpability was high.

95. Counsel for the Offender submitted that the offence fell below the middle of the range of objective gravity. Mr Steel submitted that, to the extent that the Offender’s underlying mental health issues may have contributed to the offence, as disclosed in Ms Cullen’s report, it would be open to the Court to make some allowance for this aspect so as to reduce the Offender’s moral culpability for the offence.

96. In reaching a conclusion concerning this aspect, I have had particular regard to the following features.

97. First, the catalyst for the Offender setting off from his home on the afternoon of 22 July 2018, bound for SJ’s unit, was the call from Ms Delforce at 4.53 pm which indicated that Mr Marques was being assaulted by Mr Nassif, and possibly others, at SJ’s unit. The motive of the Offender for acting as he did was anger and upset arising from his understanding of what Mr Nassif had done to Mr Marques on a prior occasion, and what was apparently occurring at that time at SJ’s unit. This is not a case where the Offender set off, in a cold-blooded fashion, to kill Mr Nassif. There is no evidence suggesting any more sinister motive for the Offender to wish to do serious harm or worse to Mr Nassif at that time other than the Offender’s concern for his friend, Mr Marques.

88. Secondly, the Offender’s planning as to what was to happen was undertaken over a short period of time. The Offender armed himself with the pistol which he had hidden in the backyard of his home. The Offender should not have been in possession of a pistol at all at that time and his criminal history pointed to earlier offences concerning firearms. The Offender took steps to guard against identification by ensuring that AB took latex gloves which were used upon their arrival at the unit complex. In addition, the Offender wore clothing which assisted in disguising him from clear identification by the CCTV system which he clearly knew existed in the unit complex. Rather than driving himself to the unit complex and parking in the basement, the Offender requested his father to drop himself and AB some distance from the building, with this being intended to reduce identification by means of the CCTV cameras in the basement.

89. All of this demonstrates a level of planning on the part of the Offender, albeit carried out at short notice given his desire to attend the unit complex without delay. Aggravating features of the offence included the fact that a weapon was used and that the offence was committed in company: s.21A(2)(c), (e) Crimes (Sentencing Procedure) Act 1999.

90. Thirdly, although the Offender was motivated to attend the unit complex because of what Mr Nassif had allegedly been doing to Mr Marques, the Offender took no steps once he was at the unit complex to ascertain whether Mr Marques was still there or whether (if he was) he remained at risk of further injury from Mr Nassif. Rather, the Offender was determined, in a state of anger, to cause (at least) really serious bodily injury to Mr Nassif using the pistol. That was his intention as he travelled by lift up to the floor where SJ’s unit was located. The Offender was aware that the pistol was loaded with ammunition with the safety catch off, so that it was ready for immediate use once he entered the unit. Upon entry to the unit, it would have been apparent that Mr Marques was not present and that there was no ongoing threat to Mr Marques from Mr Nassif. In a state of anger, the Offender pointed the pistol at Mr Nassif and fired once intending to shoot Mr Nassif. Having shot him once, he then attacked Mr Nassif by way of a kick and a blow struck to his head using the pistol before departing the unit. The Offender had carried out his intention to cause really serious bodily injury to Mr Nassif, in a punitive attack carried out in anger, because of the Offender’s belief concerning what Mr Nassif had done to Mr Marques.

91. As stated earlier in these remarks, I am not satisfied beyond reasonable doubt that the Offender acted with intention to kill Mr Nassif. If that had been his intention, he could have readily carried it out in the unit using the pistol. Rather, I am satisfied beyond reasonable doubt (as, in my view, was the jury) that the Offender intended to cause really serious bodily injury to Mr Nassif when he shot him once with the pistol.

92. Fourthly, the Offender fled the unit complex, and eventually the State, in an effort to avoid arrest for what he had done. This involved a rather chaotic process which did not reveal planning for escape, but rather a series of steps, devised at short notice, to leave the jurisdiction before his arrest in Western Australia. These steps were taken for the Offender’s self-protection and with scant regard for Mr Nassif, whom he had shot and then physically assaulted in SJ’s unit before fleeing.

93. Fifthly, there is no evidence that the Offender was under the influence of a drug at the time when he committed the offence. Ms Cullen’s opinion provides some support for the Offender being more vulnerable and prone to overreaction because of his adverse childhood experiences, which involved a measure of exposure to bleak wartime experiences. However, that aspect provides limited assistance to the Offender in the assessment of moral culpability, although it provides some insight into his personal background and makeup which is relevant to the determination of sentence as part of the process of instinctive synthesis.

94. Sixthly, the gravest aspect in this case was the Offender’s decision to arm himself with the pistol, which he then used to inflict the fatal injury to Mr Nassif. This aspect bears upon the objective gravity of the offence and the Offender’s moral culpability, given his history of firearm offences and his unlawful possession of the pistol as at 22 July 2018. These features operate adversely to the Offender in the assessment of objective gravity and moral culpability.

95. Having considered the submissions made by the parties, and having regard to the aspects which have recently been considered, I place this offence in the upper mid-range of objective gravity for offences of murder. Although a finding of intent to cause really serious bodily injury, and not intent to kill, would usually reduce the objective gravity of the offence, the countervailing aspect in this case is the Offender’s decision to arm himself with his pistol, and to use it as part of a planned attack on Mr Nassif even though his intention did not rise above an intention to cause really serious bodily injury. The absence of an intention to kill does not necessarily mean that the murder is less serious: Charbaji v R at [181].

96. The overlapping issue of the Offender’s moral culpability picks up the same topics, but has regard, as well, to the Offender’s disastrous decision to set out on this journey to attack Mr Nassif because of the Offender’s anger as to what Mr Nassif had done to the Offender’s friend, Mr Marques, which was said to have been occurring again on the afternoon of 22 July 2018.

97. This was a gross overreaction to any perceived threat to Mr Marques. The Offender’s motivation was one of exacting revenge to punish Mr Nassif, and not the obtaining of some personal benefit for the Offender himself.

98. Insofar as the Offender’s actions can be regarded as a form of vigilante action, taking it upon himself to travel to SJ’s unit for the purpose of attacking Mr Nassif because of his perceived actions towards Mr Marques, it is necessary for sentencing courts to condemn conduct of this type: R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 at [110]; Sorensen v R [2016] NSWCCA 54 at [110]-[112]. At the same time, it would be erroneous to take into account, as an additional aggravating factor, what could be regarded as quasi-vigilantism: Hall v R [2017] NSWCCA 260 at [33]-[35].

99. In summary, the offence lies in the upper mid-range of objective gravity and the moral culpability of the Offender is substantial.

Relevance of Offender’s Criminal History on Sentence

110. The Crown submitted that the Offender’s criminal history denied him any claim for leniency upon the basis that the present offence cannot be considered as an uncharacteristic aberration, but rather a manifestation of the Offender’s continuing attitude of disobedience of the law. Whilst ensuring that the sentence is proportionate to the offence, the Crown submitted that issues of retribution, deterrence and protection of society all indicate that a more severe penalty is warranted: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [26].

111. I accept the Crown submission in this respect. The Offender’s criminal history provides him with no assistance and indicates a repeated course of offending with respect to firearms, an issue with direct relevance on sentence for the present offence.

112. Taken with that is the Offender’s history of commission of offences whilst subject to conditional liberty with the present offence, once again, falling into this category as he was on parole as at 22 July 2018.

Sentencing of AB and the Parity Issue

113. AB was convicted at a separate trial before Harrison J and a jury of the murder of Mr Nassif. He was sentenced to imprisonment for 14 years commencing on 24 July 2018 with a non-parole period of 10 years and six months: R v AB [2021] NSWSC 849.

114. As the Offender and AB are each to be sentenced, as related offenders, for their part in the murder of Mr Nassif, it is necessary for the Court to have regard to the parity principle. That principle is based upon the concept that like cases should be treated alike and different cases differently: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]. In sentencing the Offender, it is appropriate that the Court has regard to the sentencing remarks of Harrison J when sentencing AB for the same offence.

115. There are a number of very significant differences to be taken into account on sentence with respect to AB and the Offender. A number of these features are apparent from the sentencing remarks of Harrison J. His Honour observed (at [12]) that there was never any suggestion that AB directly physically harmed Mr Nassif nor that he offered any threat or violence towards him.

116. Harrison J found that AB did not know that the Offender had a firearm until the Offender unwrapped it in the lift in the unit complex (at [15]).

117. Harrison J had regard to the fact that AB had given an undertaking to give evidence at the Offender’s trial, so that his assistance was to be taken into account under s.23 Crimes (Sentencing Procedure) Act 1999. In addition, his Honour noted that AB had approached the police within a short time after the death of Mr Nassif, and had volunteered comprehensive details of what had taken place to police before the police were aware of AB’s involvement (at [27]-[29]). His Honour allowed a discount of 25% for AB’s assistance which was allocated equally between past and future assistance (at [30]).

118. In addition, Harrison J was satisfied that AB was genuinely remorseful and contrite for his involvement in the offence (at [31]-[32]). His Honour found that AB was entitled to a reduction in his sentence (which was not quantified) because of the way in which his trial had been conducted, which facilitated the course of justice for the purpose of s.22A Crimes (Sentencing Procedure) Act 1999 (at [41]-[43]).

119. Harrison J emphasised (at [44]-[48]) that AB had no ill-feeling towards Mr Nassif and that it was AB who attempted to calm the Offender after the shooting.

120. Harrison J said at [48]:

“Finally, I should observe, for the avoidance of doubt, that my conclusion as to the proper sentence in this matter has been significantly informed by the fact that [AB] was not involved in the direct infliction of physical harm upon Mr Nassif. Nor in my opinion did his physical presence materially assist Mr Krivosic in the act of shooting Mr Nassif or contribute to his death in a way [which] is measurable beyond satisfying the bare legal elements necessary to establish his criminal culpability. In my view, the circumstances that generated Mr Nassif’s death support a conclusion that [AB’s] moral culpability for his death is low.”

121. It will be apparent that there are very substantial differences between the basis upon which the Offender was found guilty of murder and that by which AB was convicted by a different jury.

122. The Offender possessed the pistol and used it to shoot Mr Nassif because of his grievance with him referred to earlier in these remarks. By way of contrast, AB was unarmed and unaware that the Offender was armed until he saw the pistol produced by the Offender in the lift inside the unit complex.

123. AB caused no direct harm himself to Mr Nassif. Further, AB received a 25% discount on sentence for his assistance to authorities, as well as attracting unquantified discounts by reason of his contrition and remorse and his facilitation of the course of justice.

124. The objective gravity of AB’s offence, his moral culpability and his subjective circumstances were very markedly different to those of the Offender.

125. In these circumstances, although I have had regard to the sentence imposed upon AB and Harrison J’s sentencing remarks, the parity principle has a very limited role to play in the imposition of sentence upon the Offender.

Victim Impact Statements on Behalf of Members of the Nassif Family

126. Victim impact statements were furnished to the Court by the mother and younger brother of Mr Nassif.

127. The victim impact statements referred to other members of Mr Nassif’s family, including his four children. The close bond which existed between Mr Nassif and his family was demonstrated by the presence in Court, in the latter part of the trial and at the sentencing hearing, of many members of the Nassif family.

128. The Court acknowledges the sadness and grief on the part of the Nassif family at the loss of Mr Nassif as a result of the Offender’s crime. It is clear that Mr Nassif was much loved by his family who were shocked at learning of his death.

129. The fact that it has been necessary for the Court to recount certain negative aspects concerning Mr Nassif and his conduct towards Mr Marques should not serve to reduce the genuine grief which the members of his family have experienced because of his loss.

130. I take into account the harm that has been done to Mr Nassif’s family as an aspect of harm done to the community: R v Halloun [2014] NSWSC 1705 at [46]; R v Turnbull (No. 24) [2016] NSWSC 830 at [7]-[8].

131. It is appropriate that I once again express condolences of the Court to members of the Nassif family for their loss which is reflected in the detailed victim impact statements made by members of his family.

Prospects of Rehabilitation and Risk of Reoffending, Specific and General Deterrence, Absence of Contrition and Remorse

132. The commission of a serious offence such as this, against the background of repeated offences including firearms, violence and prohibited drugs, does not augur well for the Offender’s prospects of rehabilitation.

133. The Offender’s risk of reoffending, viewed at the present time, is significant. It must be borne in mind, however, that the Offender will be serving a substantial period of imprisonment for the present offence so that it will fall to the State Parole Authority, at a significantly later time, to form a view as to the Offender’s progress in custody, against his background of recidivism associated with drug abuse and his troubled early years.

134. A meaningful assessment of his prospects of rehabilitation and his risk of reoffending can only be made, in a truly informed fashion, at a much later time. That said, in the absence of significant action being taken by the Offender, his prospects of rehabilitation are not good.

135. General deterrence is an important factor on sentence in this case. The possession and use of unauthorised firearms in the community is a matter of real concern, as was emphasised by the Court of Criminal Appeal in Krivosic v R at [64] (see [75] above). It is important that a message be sent to persons in the community that use of unauthorised firearms is to be condemned, with the present case being a tragic example which demonstrates that even a single shot from a firearm can prove fatal.

136. Specific deterrence is also an important factor on sentence in this case. The Offender has a substantial criminal history for serious offences including firearm offences. Past sentencing orders, including bail, bonds and parole have failed to deter the Offender from committing what was an even more serious crime, once again involving a firearm in this case to commit murder.

137. If the Offender’s conduct can be regarded as a form of vigilante action, this does not serve to reduce the importance of general deterrence and specific deterrence on sentence: R v Speechley at [110], [122]; Sorensen v R at [110]-[112].

138. Although I have regard to the psychological evidence concerning the Offender’s mental state, I do not consider that it serves to reduce the need for specific deterrence or general deterrence in this case. The Offender’s actions on 22 July 2018, albeit carried out within a short period of time, demonstrated a methodical approach to arm himself, and then take associated protective measures to guard against identification for the purpose of committing a serious crime of violence using the firearm against another person. The psychological evidence concerning the Offender provides limited assistance to him on sentence in these circumstances.

139. The Offender has not demonstrated contrition or remorse with respect to the offence. As was his right, he proceeded to trial and was found guilty by the jury. The Offender does not have the benefit of a finding of contrition or remorse which would otherwise serve to mitigate sentence.

Comparative Sentences

140. The Crown drew the Court’s attention to a number of sentencing decisions in other cases (MFI2) which were said to be comparative cases which would assist the determination of sentence in this case. In this regard, the Crown referred to R v May (No. 7) [2008] NSWSC 971, R v Dunstall (No. 4) [2018] NSWSC 1923, R v A1 (No. 6) [2019] NSWSC 1581, R v Shephard [2020] NSWSC 141 and CC v R; R v CC (2021) 289 A Crim R 453; [2021] NSWCCA 71.

141. The Crown noted certain features of these cases which were said to bear upon sentence in the present case. Counsel for the Offender pointed to significant differences between these cases and the case of the Offender and submitted that no real assistance could be derived from these cases on sentence.

142. Having considered the circumstances of these sentencing decisions and undertaken a comparison with the present case, with the possible and limited exception of R v Shephard, I do not derive any real assistance from them for the purpose of sentencing the Offender. It may be said that each of these cases involved an offence of murder committed by shooting. Apart from that, there are significant differences in the circumstances of the cases, particularly with respect to the facts and objective gravity of the offence itself. None of these cases involves an offence of murder committed in circumstances which are analogous to the present case.

143. I do not consider that any of these sentencing decisions operates as a useful yardstick for the purpose of determining a possible range of available sentences in the present case: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [27]-[29].

Impact of COVID-19 Pandemic on Sentence

144. Counsel for the Offender submitted that the Court should have regard on sentence to the impact of the COVID-19 pandemic, which has manifested itself since 2020 and is likely to continue to do so into the future. In that respect, reliance was placed upon the affidavit dated 18 February 2022 of Melissa Husseyin, solicitor, which outlined the impact upon persons in the correctional system resulting from the COVID-19 pandemic.

145. There is no direct evidence from the Offender concerning the impact upon him of the COVID-19 pandemic. He has, of course, been in custody continuously since 6 August 2018.

146. On one view, the stresses experienced by the prison population are not greatly different from the stresses which have applied for more than two years within the general community, where the COVID-19 pandemic has manifested itself, with varying degrees of ferocity, so as to restrict the community in many aspects of life as well as affecting the health and wellbeing of the public.

147. However, there are other consequences of the COVID-19 pandemic which affect the prison population in significant ways. There are restrictions upon personal visits and upon the capacity to carry out programs within prisons. A consequence of the strict conditions that have been imposed, and that have led to relatively low levels of COVID-19 in the prison system, is that the conditions of incarceration have been made much more difficult.

148. I accept that the Offender’s experience in custody has been impacted adversely as a result of the restrictions within the correctional system flowing form the COVID-19 pandemic. I accept that the combination of COVID-19 restrictions, and limited visitation, renders the incarceration of the Offender more onerous and it will remain more onerous for some period of time: R v Tangi (No. 12) [2020] NSWSC 547; R v French [2021] NSWSC 1531 at [70]; R v Macdonald; R v Edward Obeid; R v Moses Obeid (No. 18) [2021] NSWSC 1343 at [142]-[150].

Commencement of Sentence

149. As noted earlier, the Offender’s parole was revoked by the State Parole Authority on 25 July 2018, with the basis of the revocation being his breach of the parole order due to a failure to comply with conditions which required his attendance at the EQUIPS Foundation Program on 23 July 2018. Following revocation, the balance of sentence to be served was one year, one month and six days.

150. Where parole is revoked as a consequence of the commission of a subsequent offence, the Court has discretion as to whether the subsequent sentence should be backdated to the time when the Offender was taken into custody for a subsequent offence: R v Callaghan (2006) 160 A Crim R 145; [2006] NSWCCA 58 at [22]-[23].

151. Counsel for the Offender submitted that, in the present circumstances, the Court should exercise its discretion to commence the sentence at a date some point earlier than 30 September 2019, this being the date when the balance of parole expired.

152. The Crown submitted that the Court should not backdate the sentence to a date before 30 September 2019, especially as the Offender’s parole arose from an offence of unauthorised possession of a firearm for which sentence had been imposed in the Court of Criminal Appeal.

153. The evidence before the Court indicates that the Offender’s compliance with parole prior to 22 July 2018 had been chequered. The precise reason which triggered revocation of parole was the Offender’s failure to attend an EQUIPS program on 23 July 2018. Of course, at that time, the Offender was on the run from the authorities following the commission of the present offence the day before. In a broad sense, it may be said that the commission of the present offence is related to the circumstances of revocation of parole.

154. That said, it is necessary to keep in mind, as well, the fact that the Offender was on parole for serious offences including a firearm offence. This Court is aware that the Offender, in flagrant breach of his parole, was in possession of the pistol hidden in his backyard which he obtained and used in the commission of the present offence.

155. In all the circumstances, I will allow for a modest level of backdating having regard to the association between the commission of the present offence and the revocation of the Offender’s parole. The sentence to be imposed will commence on 30 July 2019.

Determining an Appropriate Sentence

156. It is necessary now to draw together the various features of the offence and the Offender, together with application of relevant sentencing principles, as part of the exercise of instinctive synthesis which produces the sentence to be passed for this offence.

157. In this respect, I have regard to the important guideposts constituted by the maximum penalty and the standard non-parole period.

158. I have concluded that the offence lies in the upper mid-range of objective seriousness and that the Offender’s moral culpability is substantial. Specific deterrence and general deterrence remain significant factors on sentence in this case.

159. The fact that this offence was committed by use of a firearm, whilst the Offender was subject to parole for a firearm offence, does not assist the Offender on sentence.

160. I have regard to the Offender’s subjective circumstances, including his difficult childhood experiences both overseas and in Australia.

161. Having taken into account all relevant considerations, I am satisfied that a sentence of imprisonment for 28 years should be passed in this case. I am not satisfied that a finding of special circumstances should be made. There will be ample opportunity, by way of conditional liberty, if the Offender is released on parole after serving 75% of the head sentence. In reaching this conclusion, I have kept in mind that, following revocation of parole, the Offender was serving a sentence by way of balance of parole after his arrest on 6 August 2018. I do not consider that this aspect of totality (when viewed alone or in conjunction with other factors) gives rise to a finding of special circumstances, so as to warrant alteration of the statutory ratio between the non-parole period and the head sentence.

162. As noted earlier, the sentence will commence on 30 July 2019.

163. As the Offender is convicted of a “serious violence offence”, it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 and its potential operation in the future in his case. I ask the Offender’s legal representatives to undertake that task on the Court’s behalf.

164. Marko Krivosic, following the verdict of guilty returned by the jury on 3 December 2021, you are convicted of the murder of George Nassif at Warwick Farm on 22 July 2018.

165. For that offence, I sentence you to imprisonment for 28 years comprising a non-parole period of 21 years commencing on 30 July 2019 and expiring on 29 July 2040, with a balance of term of seven years commencing on 30 July 2040 and expiring on 29 July 2047.

166. The earliest date upon which you will be eligible for release on parole is 30 July 2040.

Application Under Slip Rule

167. After sentence was passed and the orders entered, the Court was requested by counsel for the Offender, on 2 May 2022, to vary the commencement date of the sentence under the slip rule. The Court had been informed that the Offender’s balance of parole expired on 30 September 2019 (see [152]-[153] above). In fact, the Offender’s balance of parole expired on 13 September 2019. Having regard to the Court’s stated intention to allow two months by way of backdating (see [156] above), it was submitted that the Court should consider applying the slip rule to direct that the sentence commence on 13 July 2019 in place of 30 July 2019.

168. The Crown agreed with the factual matters raised on behalf of the Offender and did not oppose the application made under the slip rule.

169. The power to correct an error arising from accidental slip or omission directs attention to what the Court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded: Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [21]. The slip rule, as an aspect of inherent or implied powers, allows for limited correction of an order after its final entry. The power is to be exercised sparingly: Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 at [18].

170. It was the intention of the Court to backdate the commencement date of the sentence by a period of two months prior to the expiration of the Offender’s balance of parole. The Court acted upon information that the Offender’s balance of parole expired on 30 September 2019. This information was not accurate with the correct date being 13, and not 30, September 2019.

171. I was satisfied that it is open to the Court, under the slip rule, to correct the order made on 29 April 2022, so that the sentence will commence on 13 July 2019.

Amended Order

172. Accordingly, on 6 May 2022, I made an order in Chambers, under the slip rule, varying the order contained at [166]-[167] of the sentencing remarks so that the sentence for the offence of murder is one of imprisonment for 28 years, comprising a non-parole period of 21 years commencing on 13 July 2019 and expiring on 12 July 2040, with a balance of term of seven years commencing on 13 July 2040 and expiring on 12 July 2047.

173. The earliest date on which the Offender will be eligible for release on parole is 13 July 2040.

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Decision last updated: 06 May 2022