R v Safetli

[2013] NSWSC 1096

Supreme Court

New South Wales

Medium Neutral Citation:	R v Safetli [2013] NSWSC 1096
Hearing dates:	5 July 2013, 1 August 2013
Decision date:	09 August 2013
Jurisdiction:	Common Law - Criminal
Before:	Latham J
Decision:	Convicted on the charge of intimidation pursuant to the s 166 certificate. Sentenced to a fixed term of 6 months, to date from 13 October 2010, expiring 12 April 2011.  Convicted of the murder of Michael McGurk. Sentenced to a non-parole period of 6 years and 6 months to date from 13 April 2011, expiring 12 October 2017. The balance of term expires 12 April 2020. Eligible for release on 13 October 2017.
Catchwords:	SENTENCE - guilty pleas - offence of murder - offence of intimidation - maximum discount for utilitarian value of pleas of guilty - execution style murder for payment - top of the range of objective seriousness for intimidation offence - offender's past and future assistance to police of a very high order - offender not entitled to an Ellis discount - no finding of special circumstances on basis of offender's subjective circumstances - finding of special circumstances on basis that accumulation of sentence for murder upon sentence for intimidation offence results in an aggregate non-parole period that is disproportionate to aggregate term
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 Criminal Procedure Act 1986
Cases Cited:	Lewins v R [2007] NSWCCA 189 R v Ellis (1986) 6 NSWLR 603 R v King (1998) 99 A Crim R 288
Category:	Sentence
Parties:	Regina - (Crown) Offender - (Haissam Safetli)
Representation:	Counsel J Pickering SC - (Crown) M Thangaraj - (Offender)   Solicitors Solicitor for Public Prosecutions - (Crown) Nyman Gibson Stewart - (Offender)
File Number(s):	2010/339091

SENTENCE

1. The offender, Haissam Safetli, pleaded guilty in the Local Court to the murder of Michael McGurk on 3 September 2009. The offender adhered to that plea in this Court on 5 July 2013. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years.

2. The offender is entitled to the maximum discount for the utilitarian value of his pleas of guilty and the contrition inherent in those pleas.

3. The following agreed facts outline the circumstances leading up to the victim's murder and the role played by this offender. These facts have been, to a significant extent, recounted in the sentencing of Fortunato Gattellari and Senad Kaminic.

The Offence

4. Gattellari, and Ronald Medich, enjoyed a close business relationship for several years prior to 2009. Medich is a prominent property developer and businessmen who invested significant amounts of money into various business ventures proposed by Gattellari. The latter acquired a number of companies on behalf of Medich. These companies had financial difficulties which made them ripe for acquisition and development. All the companies' shares were transferred into an entity owned by Medich who was the sole director and shareholder. Gattellari's role was to oversee the running of these businesses on behalf of the entity. Gattellari was also involved in collecting debts owed to Medich.

5. Kaminic, became an associate of Gattellari's and undertook the role of driver and general assistant as and from September 2008. Kaminic also assisted Gattellari in collecting money owed to Medich.

6. The offender Safetli met Kaminic in about 2001 whilst Kaminic was working as a debt collector. They became friends. In about mid 2008, Kaminic introduced the offender, who was working in a national accounting firm, to Gattellari. The offender did some surveillance and debt collecting work for Gattellari to supplement his income.

7. The offender became friendly with Christopher Estephan, a 19-year-old man who was known to the offender's nephew. In 2009, Estephan regularly socialised with the offender.

8. During 2007 Medich developed a business relationship with the victim, Michael McGurk. McGurk was a 44-year-old married man with four children. He was the director of a finance company which operated from a Sydney address. He was also involved in property development, short-term finance lending and debt collection. He was the director of well over 20 other companies which were mainly linked to short-term money lending or development projects.

9. During late 2008 the business relationship between Medich and the victim deteriorated. In early 2009 each of them instigated a number of civil actions in the Federal and Supreme Courts against each other, claiming that the other owed significant amounts of money. These court proceedings were costly and protracted. A considerable amount of animosity was generated by these proceedings and by disputes between them concerning investments, trusts and property dealings.

10. The claims by the victim against Medich grossly embarrassed and humiliated Medich. Medich came to believe that he was the laughing stock of the eastern suburbs, that he had been humiliated in the eyes of his wife and that the victim was costing Medich considerable amounts of money.

11. As a result of these various disputes, Medich began to express to Gattellari a wish that the victim be killed. Medich constantly complained to Gattellari of the exorbitant cost and embarrassment involved in the various proceedings against the victim. Medich became increasingly concerned that he would not recoup the money he had invested in the victim's company.

12. At Medich's request, Gattellari called the offender into his office at Chipping Norton and asked him to carry out some surveillance on the victim. The offender was to supply Gattellari with information relating to the victim's home address and business address that had been provided to Gattellari by Medich. Gattellari instructed the offender to follow the victim and find out everything he could about him.

13. The offender attended the victim's home and business address and recruited other associates, including his brother, to conduct surveillance on the victim.

14. The offender's brother took photographs of the victim, downloaded them onto a CD, and provided them to Kaminic to pass on to Gattellari. Any information obtained during the course of the surveillance was continually relayed from the offender to Kaminic to Gattellari and then to Medich.

15. Towards the end of March, Gattellari had a meeting with Medich wherein they discussed the victim and the ongoing disputes between them. Medich told Gattellari "I need to put an end to this. I need some help from you, I need you to find someone to kill him for me." Gattellari replied "are you sure about this, because there is no going back" to which Medich replied "yes, I am absolutely sure, if you can find someone I want him dead."

16. Medich also told Gattellari that once the victim had been killed he wanted to apply pressure to the victim's wife so that she would resolve her husband's outstanding legal disputes with him.

17. A couple of days after this conversation Medich asked Gattellari whether he had found anyone to "do that job". Gattellari then discussed with Kaminic an approach to the offender to determine if he would carry out the job.

18. Kaminic organised a meeting between the offender and Gattellari at Gattellari's home. Gattellari told the offender in the presence of Kaminic that he was not happy with the surveillance work that had been carried out and that it had cost Medich a lot of money. He told the offender and his brother "I want him gone. I want this done by you. You've been watching him now, you know him, it's going to be done regardless. So you have to organise it."

19. Gattellari negotiated a price with the offender to carry out the murder. It was agreed that he would be paid $300,000.00 to murder the victim. It was further agreed that Gattellari would organise for payment of expenses to the offender and upon the completion of the contract Gattellari would pay him the outstanding amount.

20. During this meeting Gattellari also informed the offender that after the victim had been murdered Medich wanted the victim's wife to receive a threatening message to the effect that she was required to repay her husband's debts.

21. A short time later Gattellari informed Medich that he had found someone to kill the victim but that it would cost between $300,000.00 and $500,000.00 in total for the murder of McGurk and the intimidation of Mrs McGurk. Whilst Medich complained about the amount he nonetheless agreed to that sum.

22. A couple of days later Gattellari drove to Medich's home in Wolseley Road Point Piper. Medich gave Gattellari a cryovac sealed bag containing cash, reportedly in the sum of $250,000.00, "to take care of McGurk". Gattellari took the bag and drove back to Chipping Norton. Gattellari took $45,000.00 from the bag and placed the remaining money in a safe in his bedroom.

23. Gattellari placed the $45,000.00 in a brown paper bag and gave it to Kaminic, saying "tell the guys that this is their expense money. Tell them they have to start doing what they need to do." Kaminic gave the money to the offender and told him of Gattellari's message. This was the first payment to the offender for the murder of the victim.

24. Over the following days, the offender was advised that the murder was to look like a cocaine overdose gone wrong. However, as the weeks went by, Medich's frustrations increased. Gattellari and Kaminic each regularly spoke or met with the offender to enquire after the progress of the matter and to pass on Medich's wishes that the murder be committed as soon as possible. At one such meeting in his home, Gattellari said to the offender "this is costing Ron a lot of money, it is causing him headaches, he just wants it done - get it done any way you can."

25. On 16 May 2009, Gattellari and Medich tarvelled to China on business. During this trip Gattellari sent Kaminic a text message to the following effect "if they're ever going to do it, this would be the time". The message was sent following repeated harassment from Medich about the delay.

26. Between April and July 2009, the offender tried to find and engage someone willing to carry out the murder with him. An associate appeared to be interested and willing to commit the murder. However this associate regularly took significant amounts of cash but prevaricated when it came to carrying out the murder. Both this associate and another recruit used money provided by the offender to purchase drugs.

27. Medich continued to pressure Gattellari to ensure that the murder was carried out as soon as possible. Gattellari and Kaminic were in turn making constant enquiries of the offender as to when the event would take place. During any mobile phone communications between them, they would refer to the contract to murder as "rims, or wheels, or tyres".

28. During July 2009 Gattellari was still under pressure from Medich as to when the murder was going to take place. Eventually, Gattellari informed Kaminic who called the offender to a meeting at the factory in Chipping Norton. The offender was told of Medich's concern and asked whether he "needed a hand". The offender accepted that offer.

29. Gattellari then had a discussion with an associate, who arranged a meeting between the offender and another potential recruit to carry out the murder. This meeting was to be held at Malabar RSL. The recruit attended the meeting and stated he was prepared to carry out the murder but he asked for a considerable sum of money upfront. Gattellari later told the offender he was not prepared to part with that amount of Medich's money to someone he did not know.

30. The victim was on a family holiday in the Jindabyne region between 20 and 24 July 2009. His reporting conditions, imposed as part of his bail on an arson charge, were varied accordingly. Medich was informed of these arrangements by a police officer. On about 18 July 2009 Medich met Gattellari and told Gattellari of the victim's intended trip to Jindabyne. Gattellari in turn instructed Kaminic to notify the offender that the victim was not to return from the snow.

31. The offender then requested an additional sum of money to fund a trip to Jindabyne to murder the victim. His message was passed on to Gattellari through Kaminic. Gattellari obtained either $5000.00 or $10,000.00 from the money stored in his safe and gave it to Kaminic to give to the offender.

32. Gattellari and Kaminic left Australia on 23 July 2009. The offender prepared to drive to Jindabyne to murder the victim but he never made the trip.

33. Gattellari met the offender for lunch in Leichhardt, where he told the offender that Medich was angry that the murder was taking so long. Gattellari proposed that he would introduce the offender to Medich as "the new guy" who would carry out the contract within four weeks. Later, Medich arrived at the restaurant. The offender was introduced to him and agreed "one hundred percent" that he could "get the job done" in four weeks.

34. In early August 2009 the offender discussed the murder contract with Christopher Estephan who was keen to become involved. The offender and Estephan commenced preparations for the murder. It was agreed that Estephan would be paid $30,000.00 plus expenses for his role. The offender then explained to Estephan that McGurk was the intended victim and showed him where the victim lived.

35. Estephan purchased a .22 calibre rifle and a single barrel shotgun. He provided them to the offender for about $6000.00 which was part of the funds provided to the offender by Gattellari.

36. At about this time, Kaminic received frequent text messages from the offender stating the "job" was going to happen soon. Specific dates were proposed. Kaminic passed these messages on to Gattellari but nothing happened.

37. On 18 August 2009 Estephan stole a set of vehicle number plates from a Mercedes van in the Parramatta area. The following day the offender and Estephan travelled to McGurk's home address with a rifle in Estephan's white Mercedes van. Estephan swapped his vehicle's number plates for the stolen set. They arrived outside the victim's home mid-afternoon and waited for him for several hours. They then abandoned the attempt to murder him on that day.

38. In the following days Estephan and the offender modified the .22 "Norinco" brand rifle by using a hand grinder to cut off part of the handle and the barrel. This made the gun easy to use. They test-fired the rifle to ensure that it was operational.

39. A few days later the offender met with Gattellari at Chipping Norton and told him that the job would be done. Gattellari told the offender that the victim was costing Medich millions and that they wanted a "heads up" before the murder so that they could ensure they were in a public place when it occurred.

40. On 2 September 2009 the offender and Estephan decided to commit the murder the following day. They decided to use the offender's 2002 Toyota Hilux utility which was unregistered.

41. On the same day Gattellari and Kaminic travelled to Narooma and stayed overnight in a local hotel.

42. In the morning and early afternoon on 3 September 2009 Gattellari was in telephone contact with both Medich and the offender. Shortly after 3 pm Gattellari received a text message from the phone of the offender's brother.

43. At about 1 pm Gattellari and Kaminic arrived back in Sydney where they had lunch in a private room in a Chinese restaurant where they were joined by Medich. At about 4 pm they all left the restaurant and attended a massage parlour.

44. At around 1:30 pm Estephan arrived at the offender's home in Elderslie near Camden with stolen number plates relating to a Hilux utility. They attached the stolen plates to the front and rear of the offender's utility.

45. The offender was dressed in a dark tracksuit with a long khaki coat. He drank whisky and smoked some cannabis.

46. After they had placed the modified rifle in a bag and placed it in the cabin of the utility, they drove to Cremorne. The vehicle travelled eastbound on the M5 motorway, passing through a toll collection point without a valid electronic toll pass at about 2:54 pm. They arrived at Cranbrook Avenue Cremorne at around 3:30 pm, stopping the vehicle on the northern side of the street facing east towards Spofforth Street. They were directly opposite the victim's home.

47. A short time later Estephan walked from the utility to the Cremorne Cellars bottle shop in Spofforth Street where he attempted to purchase alcohol. He was declined service because he was not able to provide valid proof of age. He returned to the vehicle.

48. At 6 pm Medich, Gattellari and Kaminic left the massage parlour. Medich went to the Bligh Bar in Sydney. Gattellari was driven to his home in Chipping Norton by Kaminic.

49. At about the same time, the offender walked from the utility to Cremorne Cellars bottle shop where he purchased a bottle of Jim Beam before returning to the vehicle. On his return he consumed a quantity of whisky and swapped seats with Estephan so that Estephan was now seated in the driver's seat.

50. The victim drove from his York Street office, picking up his 9-year-old son and obtaining a takeaway meal on the way. They visited the Mosman newsagency at around 6:13 pm before attending the IGA supermarket, leaving at 6:23 pm to drive home.

51. At about 6:25 pm the victim drove his Mercedes sedan from Spofforth Street into Cranbrook Avenue where he stopped on the southern side of the street outside the entrance to his home. As he opened the driver's door, leaned into the back seat to retrieve the shopping and began to exit the car, he was shot at close range. According to the offender, Estephan took the modified rifle and walked quickly to the victim's side of the vehicle, shooting the victim behind his right ear in the presence of his son.

52. Following the shooting, Estephan drove the utility east towards Spofforth Street where he narrowly avoided a collision with another car at the roundabout on Spofforth Street. The offender used a Phillips head screwdriver to dismantle the rifle. The vehicle travelled north towards Military Road. They then travelled over the Harbour Bridge and the Anzac Bridge before stopping in Bicentennial Park, Rozelle Bay. The offender threw the detached metal frame of the weapon into Sydney Harbour at Rozelle Bay. On 15 September 2010, police divers recovered this weapon.

53. The offender and Estephan then drove towards the offender's home at Elderslie. At a point west of King Georges Road at Narwee on the M5 south-western motorway, they stopped in the breakdown lane, where the offender threw the cutdown wooden stock of the rifle over the motorway sound partition. They continued on their journey and arrived at the offender's home before 8 pm. There they built a fire in a pot, burnt their clothing, the stolen number plates and their mobile phones.

54. At 8:03 pm Gattellari or Kaminic received a text message from the mobile phone of the offender's brother, reading "job's done".

55. The next day, after the offender received a text message from Kaminic, Kaminic arrived at the offender's home and gave him an envelope containing $20,000.00. The offender told him that "the job is done."

56. Between 7 and 9 September 2009 Kaminic was given another package of cash from Gattellari to give to the offender, which he did.

57. Over the next few months, Gattellari would regularly give Kaminic a package or bag containing cash payments for the murder of the victim. Kaminic would arrange to meet the offender and would hand over the package. These amounts varied between $10,000.00, $20,000.00 and $40,000.00. This continued until the balance of $300,000.00 was paid, including the gift of Gattellari's Honda Jazz motor vehicle to the offender.

58. Due to the intense media pressure on Medich, it was decided not to visit the victim's wife in order to threaten her over the resolution of the legal proceedings at that time. However, Medich became increasingly frustrated that the death of the victim had not resolved his financial and legal disputes with the McGurk estate.

4. By late May 2010, when the caveat lodged on the victim's home was lifted, Medich instructed Gattellari to reinstate the job to intimidate the victim's wife to settle their legal disputes and pay her husband's outstanding debts.

5. Some months later Medich reiterated to Gattellari that a message must be delivered to Mrs McGurk to pressure her into settling the legal disputes. Gattellari told Kaminic to convey the offender to his office where Gattellari told the offender that Medich wanted Mrs McGurk to receive a "visit". Mrs McGurk was to be threatened but no violence was to be used. The offender said he wanted $100,000.00, half of which was to be paid up front, and Gattellari agreed.

6. Gattellari then approached Medich and informed him that he needed $100,000.00 for "the job". On about 30 July 2010 Medich handed Gattellari a shopping bag containing bundles of cash totalling $100,000.00.

7. In late July, the offender approached an associate, who was then a registered source, offering him $30,000.00 to assist him in intimidating Mrs McGurk. The offender told the associate that he would go to the house wearing a wig and cap. These conversations were recorded.

8. On about 4 or 5 August 2010 Gattellari gave Kaminic $50,000.00 of this amount to give to the offender as an initial payment, which he did.

9. On 6 August 2010 Gattellari and Medich left Australia and travelled to China, returning on 12 August 2010. Kaminic met up with the offender in Liverpool and provided further instructions to him about his approach to Mrs McGurk.

10. The offender instructed the registered source to obtain a wig and coloured contact lenses so that they could deliver the threatening message to Mrs McGurk while the "bosses" were out of the country.

11. On 8 August 2010 they drove to Cranbrook Avenue Cremorne arriving at about 7:30 pm. As directed by the offender, the registered source disguised himself, walked up to the house and told Mrs McGurk to "pay your husband's debts - don't be a thief like your husband" before leaving the home and returning to the offender. This conduct constitutes the offence of intimidation with the intention of causing fear of physical or mental harm, pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. It is the subject of a s 166(1) certificate under the Criminal Procedure Act 1986.

12. The offender confirmed with the registered source that the message had been delivered. The offender later wiped down the vehicle and instructed the registered source to burn the wig and clothing.

13. The offender then notified Kaminic that the message had been delivered and Kaminic passed this message on to Gattellari in China who in turn informed Medich. Kaminic received $10,000.00 from the offender as a commission for arranging the offender's involvement in this "job".

14. On 9 August 2010, the offender gave the registered source the sum of $10,000.00 for his role in threatening Mrs McGurk.

15. Gattellari, Kaminic, the offender and Estephan were arrested on 13 October 2010. The offender has remained in protective custody since that date.

16. On 13 October 2010, police executed a search warrant on the offender's home and seized a number of mobile phones, sim cards, a will, letters to his children requesting forgiveness, computers, business documents and other items of interest.

17. Medich was arrested on 26 October 2010 and charged with soliciting the murder of Michael McGurk. He was later charged with murder.

The Basis of the Offender's Liability, the Objective Gravity of the Offences and the Offender's Assistance

73. The offender is to be sentenced on the basis that he participated directly in the execution style murder of a man, in return for payment. The fact that the Crown is not able to refute the offender's account that it was Estephan who actually shot the victim does not, in my view, materially affect the offender's objective culpability for the murder.

74. From the moment when Gattellari pressed the offender to organise the victim's murder, the offender played an active and sustained part in the undertaking. The offender negotiated the price to be paid, and agreed to threaten the victim's wife after the murder was carried out. Over four months, the offender attempted to recruit others to carry out the murder and ultimately agreed to kill the victim himself. The offender recruited Estephan, paid him for the purchase of the rifle, and took all necessary steps to kill the victim on 18 August 2009. When that attempt failed, the offender renewed his efforts.

75. Together with Estephan, he modified the weapon, and test-fired it. The use of the offender's vehicle (with stolen number plates) and the surveillance of the victim's home for three hours on the day of the murder attest to the offender's dedication to his task. In the months after the murder, the offender apparently had no difficulty accepting payment for the murder in multiple instalments.

76. A deliberate killing for payment has always been regarded as potentially within the worst category of the offence of murder : see R v King (1998) 99 A Crim R 288. In this case, the victim was shot in the presence of his 9-year-old son, outside his family home. One does not need confirmation of the profound effect such an event would have on a child and every other member of the family.

77. Eleven months after the murder, the offender continued the offending by negotiating a further substantial sum of money for the intimidation of Mrs McGurk. Notwithstanding that it is submitted that this offence was not to involve any actual violence, the victim's wife must have been placed in considerable fear by the utterance of the threat, which referred to her late husband as a thief. By implication, the same fate potentially awaited her if she did not pay.

78. The maximum penalty for the intimidation offence in the circumstances is 2 years' imprisonment. I regard it as deserving of a penalty towards the top of that range.

79. The police investigation of the murder included the interception of telephone services used by Medich, Gattellari, Kaminic, the offender and Estephan in the months following 16 December 2009. In mid June 2010, police installed surveillance devices in the offender's home which captured his admissions to family members of his involvement in the murder and the intimidation of Mrs McGurk.

80. Having been made aware in early September 2010 of the police investigation into his involvement in the murder, on 9 September 2010 the offender approached New South Wales police about his and others' involvement in the murder of the victim. At that time, Estephan and Estephan's girlfriend were providing induced statements to police.

81. Between 13 September 2010 and 29 November 2011, the offender provided assistance to police by way of eleven induced statements outlining his role and the role of others in the murder of the victim. The offender also gave evidence to the New South Wales Crime Commission. The offender's information led the police to the recovery of the murder weapon and of the vehicle used on the day of the murder.

82. In various conversations recorded between 15 September and 12 October 2010, Gattellari, the offender and Kaminic discussed the pressure arising out of the New South Wales Crime Commission hearings which were then on foot. Gattellari and Kaminic attempted to persuade the offender to "take the rap" for all of them for the murder by making a handwritten confession excluding their involvement. In return they promised to fund his defence and look after his family. The offender participated in these conversations on behalf of New South Wales police.

83. The offender's participation in these covert operations significantly contributed to the arrest of Gattellari and Kaminic. Gattellari and Kaminic inculpated themselves in the course of the operation. The evidence obtained from the offender also assisted in the prosecution of Estephan and to a lesser but significant extent, in the prosecution of Medich.

84. Whether the offender's assistance in the covertly recorded conversations was the impetus for the pleas of guilty from Gattellari on 7 September 2012 and Kaminic on 16 August 2012 is difficult to assess. It is sufficient to observe that the offender's assistance in that regard and his future assistance represented by his undertaking to give evidence against Medich and Estephan is of a very high order and that it is exceptional in that respect. It is accepted that the offender's proposed evidence is crucial to the case against Estephan and that the offender placed himself at risk of physical harm by his co-operation with police.

85. However, the fact that the offender maintained his plea of not guilty for almost three years (from October 2010 until July 2013) and only ever provided induced statements does detract somewhat from the force of the submission that his disclosure of his own criminality was unqualified. None of that material was capable of being used in any prosecution against him.

86. Despite the offender's senior counsel's submission that the offender is entitled to an "Ellis discount" for voluntarily disclosing his own criminality, I do not regard the offender's assistance or co-operation with the police investigation as within the realms of the principles established by R v Ellis (1986) 6 NSWLR 603.

87. In Lewins v R [2007] NSWCCA 189, Howie J said (Basten JA and Grove J agreeing) :-

15 R v Ellis (1986) 6 NSWLR 603 was a quite exceptional case where a person who had committed seven armed robberies confessed his involvement in those offences to a minister of religion and then to police in circumstances where the police had not the slightest suspicion of his involvement in any of them. Street CJ, after referring to the effects of a plea of guilty, stated at 604:

"When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned."

16 Another case where such leniency has been given very significant weight was R v Dodd (1991) 57 A Crim R 349. There the offender voluntarily walked into a police station and confessed to the manslaughter of a woman some ten years after the event and at a time when there was no chance of his guilt being discovered. Yet this Court held, allowing a Crown appeal, that a sentence commensurate with the objective seriousness of the offence had to be imposed notwithstanding the leniency to which the offender was entitled.

17 There is no decision of this Court that I have been able to discover where a separate quantified discount has been applied under the Ellis principle even where quantified discounts were allowed for the plea and other assistance. In Ryan v The Queen (2001) 206 CLR 267 McHugh J stated (footnotes omitted):

[15] ....................The statement in Ellis that "the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency" is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case."

18 Although the leniency referred to in these decisions extends to those cases where the offender volunteers additional criminality otherwise unknown to the police, the extent of the leniency will obviously not be of the same significance as in those cases where the police are unaware of any criminal offences committed by the offender. It is a matter of degree. In some cases the known criminality might be so great that little leniency can be shown for the further offences revealed by the offender.

88. Here, the offender was well and truly a target of the police investigation before his disclosures. This was not an admission of otherwise unknown guilt, where there was no chance of its discovery. In my view, the discount for the offender's past and future assistance ought not be increased further than is necessary to reflect the level of that assistance. In saying this, I do not mean to indicate that it is ever appropriate to quantify an "Ellis discount". The disclosure of otherwise unknown guilt only entitles an offender to an extension of leniency in the broad sense.

89. In all of the circumstances, the offender's assistance coupled with his pleas of guilty warrant a discount of 60%. Of the 35% attributable to assistance, his past assistance warrants a discount of 15% and his future assistance warrants a discount of 20%.

Subjective Circumstances

90. The offender is presently 46 years of age. He was married for 17 years and separated from his wife four years ago. He has a 19-year-old daughter and a 13-year-old son. He was the chief executive officer of an accounting company.

91. The offender was born in Lebanon, migrated to Australia with his family at the age of 6 months, but returned to Lebanon when he was about 9 years of age. His parents were wealthy. For that reason they became targets during the civil war in Lebanon. On one occasion, he was taken to the basement by armed soldiers with his brother and older sister. The family expected to be killed but was saved by the intervention of a neighbour. He fled back to Australia in the company of his siblings, leaving his parents behind. He was then raised by his uncle in Sydney and did not see his parents for almost 2 years when he was about 11 years of age. The offender's youngest sister remained in Lebanon.

92. The offender's father was violent towards him and towards the offender's mother and siblings. The offender's father left the family when the offender was 16. The offender did not have a relationship with his father who has since died.

93. The offender attended Punchbowl Public School and Cabramatta High School to Year 12. He is described as very intelligent with no behavioural problems as a child. He studied electrical engineering and mechanical engineering at university and subsequently worked in a tyre business and as an entrepreneur, earning his first million dollars at the age of 19.

94. The offender is reportedly a self-made man who amassed an empire of properties and other assets worth in the order of $50 million by his mid-30s. He worked extremely hard throughout his life, until his wife left the marriage for the first time approximately 16 years ago. The offender then began selling off his assets below their market value. He reconciled with his wife about eight months later. However, there was ongoing conflict in the marriage, culminating in the discovery that his wife was having an affair with a fellow teacher. The offender separated from his wife in 2008 following a second affair whilst his wife was training as a Corrective Services Officer.

95. The offender reports a history of emotional problems and high levels of anxiety throughout his life. He describes episodes of distress, some of which were precipitated by heavy drinking. He provided examples to his examining psychiatrist of periods of disassociation under stress, where he would have no recollection of how he came to be in a given location.

96. The offender was admitted to the St John of God Hospital in North Richmond in April 2005 for two weeks and in November 2009 for one week for treatment of apparent post-traumatic stress disorder (PTSD), depression and alcohol abuse. He was also diagnosed with a narcissistic personality disorder. His treating general practitioner prescribed a combination of antidepressants and mood stabilisers. The prescribed doses were well above the recommended maximum. He remained on these medications between 2005 and February 2010. He was under the care of Dr Jackman, a clinical psychologist, from about September 2009. Dr Jackman continues to see the offender on a monthly basis in custody.

97. The offender contemplated self harm between 2008 and 2010, including about ten incidents where he either cut himself or took an overdose of medication. At that time he was not functioning well, quitting his job with a national accounting firm and apparently assaulting one of his business partners on impulse.

98. The offender has a history of cannabis abuse since the age of 30. His abuse of alcohol includes periods of heavy drinking prior to his admission to the St John of God Hospital in 2005, followed by a relapse in 2008 and throughout 2009.

99. Since coming into custody, there were three or four occasions when the offender was placed in a "safe cell" owing to a risk of self harm. Presently there is no indication of any impairment to his cognitive functions. The offender has insight into his mental health and substance abuse issues. He is motivated to remain in therapy to address his problems.

100. Dr Furst, in his report of 6 July 2012, noted that the offender was depressed, struggling with insomnia and drinking and smoking cannabis to excess shortly prior to the commission of the murder. The offender claimed to Dr Furst that he was reluctant to go ahead with the killing but was under pressure from Gattellari. The offender reported to Dr Furst that he was "stuck in the middle" and that he "tried everything to get out of it".

101. Dr Furst considered that there was some corroboration that the offender was emotionally disturbed at the time of the murder, most notably the admission to St John of God Hospital on 10 November 2009 when the offender presented with increased symptoms of PTSD that included anger, dissociative episodes, depressed mood, feelings of hopelessness, poor motivation and poor concentration. The offender reported feeling suicidal for about four weeks prior to his admission.

102. In Dr Furst's view, the presence of his PTSD and high levels of anxiety and depression "represent significant mitigating factors". Dr Furst describes the offender as "remorseful". The offender continues on antidepressant medication. The offender's insight into his psychiatric and childhood issues, together with the support that he enjoys from members of his immediate family, provide him with "a good prognosis for the future".

103. With respect to Dr Furst, it is difficult to reconcile the offender's statements to the effect that he felt unable to withdraw from the offence on the one hand, with his superior intelligence and sustained course of conduct on the other hand. The offender had sufficient presence of mind to apply himself to the negotiation of a price for the murder and for the intimidation offence. In my view, the offender's psychiatric condition may have clouded his judgment in some respects, but could not have impacted upon the offender's capacity to determine right from wrong and to make decisions accordingly.

104. Similarly, it is difficult to determine the extent of the offender's remorse for the offences, as opposed to the consequences of that offending. The offender's expressions of remorse to Dr Furst and to others, such as they are, focus principally upon the effect that the offences have had upon the offender's life and concern for his own welfare. The offender's approach to police followed upon the realisation that he was under investigation. In that respect, it was a calculated decision to obtain the best outcome, rather than a spontaneous act borne of contrition.

90. The offender's prior good character is to his credit. He has no criminal history and is described as a generous, kind and loving father, sibling and friend. The offender's capacity for compassion towards others as described in Exhibit 2 stands in stark contrast to the offender's role in the murder of Mr McGuirk.

91. In my view, the offender's moral culpability is only marginally distinguishable from that of Gattellari. I accept that his prospects of rehabilitation are sound and that his incarceration in protection will be onerous. However, I decline to find special circumstances on that basis for the reasons expressed below.

Sentence

107. Taking all of the objective and subjective factors into account, the following sentences are imposed.

108. On the intimidation charge, but for the offender's assistance, a sentence of 20 months is appropriate. Applying the stipulated discount results in a sentence of 12 months' imprisonment. Given that some minor degree of accumulation is called for, and having regard to the totality of the offender's criminality, I would impose a fixed term of 6 months' imprisonment for this offence.

109. On the murder charge, but for the offender's past and future assistance, a sentence of 22 years' imprisonment is appropriate. Applying the stipulated discount results in a sentence of 9 years' imprisonment. I find special circumstances on the basis that the accumulation of the sentence for murder upon the sentence for the intimidation offence results in an aggregate non-parole period that is disproportionate to the aggregate term. However, allowing for that adjustment, any lesser period in custody would be unreasonably disproportionate to the offences.

110. Haissam Safetli, on the charge of intimidation pursuant to the s 166 certificate, you are convicted. You are sentenced to a fixed term of 6 months, to date from 13 October 2010, expiring 12 April 2011.

111. You are convicted of the murder of Michael McGurk. You are sentenced to a non-parole period of 6 years and 6 months to date from 13 April 2011, expiring 12 October 2017. The balance of term expires 12 April 2020. You are eligible for release on 13 October 2017.

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Decision last updated: 03 May 2018