R v Shamouil

[2009] NSWSC 24

CITATION:	R v Linard SHAMOUIL; R v Steven DAVID [2009] NSWSC 24
HEARING DATE(S):	13/11/08;18/1108;27/11/08;4/12/08.
JUDGMENT DATE :	6 February 2009
JUDGMENT OF:	Hidden J
DECISION:	Shamouil: imprisonment for 19 years, NPP 14 years 6 months, from 30/07/2011. David: on common assault, 6 months FT. On accessory after the fact to murder, imprisonment for 2 years 6 months, NPP 15 months, from 01/06/2008.
CATCHWORDS:	CRIMINAL LAW - sentence - plea of guilty by Shamouil to murder - pleas of guilty by David to common assault, accessory after the fact to murder
CATEGORY:	Principal judgment
CASES CITED:	R v MAK [2006] NSWCCA 381, 167 A Crim R 159
PARTIES:	Regina Linard Shamouil Steven David
FILE NUMBER(S):	SC 2008/6108; 2008/8233
COUNSEL:	PA Leask (Crown) M Ramage QC (David) P Young SC (Shamouil)
SOLICITORS:	V Engel (ODPP) D Miralis K Kyriacou

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

6 February 2009

2008/6108; 2008/8233
R v Linard SHAMOUIL & Steven DAVID

REMARKS ON SENTENCE

1 HIDDEN J: The offenders, Linard Shamouil and Steven David, were to have faced trial for the murder of Ashoor Audisho at Fairfield West on 9 April 2006. In the event, Shamouil pleaded guilty to that charge. David pleaded guilty to a fresh indictment containing two counts:

(1) common assault of Ashoor Audisho;

(2) accessory after the fact to Shamouil’s murder of Audisho.

The Crown takes no further proceedings in respect of the charge of murder against him.

Facts

2 I have received agreed statements of facts in both cases. For the most part they are identical, but there are some differences between them. I shall point out those differences as I recite the facts. Of course, in dealing with each offender I shall have regard only to the facts in his case.

3 The deceased was a 21-year-old man. On 2 April 2006, at an Assyrian festival at Fairfield, he had an argument with a young woman to whom I shall refer simply as NY. The background to that argument is not material. During the course of it, the deceased ended up trading insults with a friend of NY, a 16-year-old girl whom I shall identify as NS. NS is Shamouil’s cousin although, for reasons which I shall explain later, he saw her as his sister.

4 During the days thereafter those insults came to the attention of Shamouil, who took exception to them. He spent some time trying to locate the deceased, without success. He and David were associates. He did not know the deceased or his family, but David did. David helped him find the deceased, and by the morning of 9 April the deceased knew that both men were looking for him.

5 That afternoon, the deceased spoke to a man he knew, Awney Adam, who was also a friend of David’s brother. Adam advised the deceased against meeting with Shamouil and David. Throughout the afternoon the deceased received a large number of phone calls from both of them. Phone records show that he did not answer any of some 19 calls from Shamouil, but did speak to David on numerous occasions.

6 Most significantly, the deceased had a four minute phone call with David at 6.09 pm. At that time the deceased was working voluntarily at a club at Fairfield, where there was a children’s function. The organiser of that event overheard parts of this phone call in which the deceased appeared to be arguing with someone. Immediately after the call the deceased left the club, telling the organiser that he was having problems caused by a 16-year-old girl and that he had to go to sort something out.

7 The deceased then had further communication with Adam, in which he said that he was going to see “the boys” at Fairfield. It had evidently been agreed that he would meet Shamouil and David at a public place, that is, the 7-Eleven store at the corner of The Boulevard and Hamilton Road, Fairfield. Adam agreed to accompany him and met him at the 7-Eleven store car park. Adam went to the front of the store to buy a drink, while the deceased remained in the car.

8 At about the same time another man, Dilan Shaba, picked up Shamouil and David from Shamouil’s home in Fairfield. Both he and David were known to Adam, but Shamouil was not. Directed by Shamouil and David, Shaba drove to the 7-Eleven store and parked his car. While in the car, he overheard David on his phone telling the deceased to come to the 7-Eleven store. They got out of the car and David walked directly towards the store, while Shamouil and Shaba took a different route which followed the footpath around it.

9 Adam met David at the front of the 7-Eleven store, while the deceased remained in the car. Adam asked David a number of times if there was to be any violence, and stressed that the deceased was there to apologise. A few moments later, Shamouil and Shaba joined them at the front of the store. Adam again stressed that the deceased was there to apologise and asked if there was to be any violence. David assured him that no one was going to touch the deceased and that he only wanted to talk to him. By this time, they had moved to the car park area immediately around the corner from the store. The deceased was still in the car.

10 Adam went to the car and the deceased got out. The deceased talked to Shamouil and Shaba, while Adam was speaking to David. An argument erupted, initially between the deceased and Shamouil. Shaba became involved, and struck the deceased to the face. The argument escalated to the point where a scuffle broke out, involving grabbing, pushing and punching between Shamouil, Shaba and the deceased.

11 Shamouil produced a gun from under his jumper. Shaba stated that, as Shamouil pointed the gun at the deceased’s leg, the deceased said words to the effect of, “If you are not going to use it, put it away.” The facts in Shamouil’s case record that, according to Adam, at this point he (Adam) was attempting to calm everyone down, and he heard the deceased say, “I’m sorry, I’m sorry” about four or five times. The evidence as to exactly what was said by all parties at this time is conflicting, and senior counsel for Shamouil told me that his client does not acknowledge having heard the deceased say those words. I shall approach the matter accordingly. This material does not appear in the facts in David’s case.

12 A few moments after producing the gun, Shamouil fired three shots in rapid succession, one of which wounded the deceased fatally. The other two wounds were to his right upper arm and right buttock. The fatal gunshot wound was to his torso, with an entry point on the right side of his back. This caused damage to his right lung, liver and heart.

13 Immediately after the shooting Shaba ran to his car, followed by Shamouil and David. The facts in Shamouil’s case record that, before leaving the scene, the deceased’s mobile was taken from his person. There is no evidence as to who did so. The memory of that phone recorded the calls received from the phones of Shamouil and David at a time that would have immediately connected them with the death of the deceased. Again, none of this material appears in the facts in David’s case.

14 Shaba dropped David off a few blocks away from the scene. Shamouil gave David his mobile phone and items of clothing worn by him at the time of the shooting. David disposed of these items in order to assist him after he had murdered the deceased. It is this conduct which constitutes the offence of accessory after the fact to murder. In the facts relating to Shamouil, it is recorded that while he was in the car Shaba heard him saying “Fuck, fuck” in a scared tone.

15 Police arrived at the scene at about 7pm, to find the deceased lying face down on the footpath near the corner of The Boulevard and Hamilton Road. He was gasping for air and opening and closing his eyes, but he did not respond to police or to ambulance officers. He was pronounced dead on arrival at Liverpool Hospital.

16 It is not the Crown case that Shamouil carried a loaded gun to the meeting with the intention of shooting the deceased. Some explanation for his carrying the gun is to be found in evidence to which I shall turn later. The Crown accepts that the shooting was spontaneous. However, there is an issue whether Shamouil intended to kill the deceased or to cause him really serious bodily injury. I shall deal with that matter also later.

17 David pleaded guilty to assault on the basis that he played a role in arranging for the deceased to attend the meeting, anticipating that the deceased would be persuaded to apologise by means of threats or intimidation, if necessary. He did not contemplate actual violence. The deceased was threatened verbally in the moments before Shamouil produced the gun in circumstances amounting in law to an assault. The production of the gun by Shamouil and the shooting form no part of the facts upon which he is to be sentenced for this offence. Indeed, he was not aware that Shamouil was carrying a gun until it was produced and fired.

18 For his part in the incident Shaba also pleaded guilty to accessory after the fact to murder. He has been sentenced, and it will be necessary to consider that matter when dealing with David’s case.

Victim impact statement

19 I received a victim impact statement written by the deceased’s sister, Nahrin Audisho, on behalf of his family. The statement speaks in eloquent terms of the serious and enduring effects of this tragedy upon her parents, her older brother and his fiancée, her younger sister and herself. Of course, their grief and their outrage are understandable and entirely justified. The tragedy is all the greater because it appears from the statement that two other siblings of hers died in Iraq before the family came to this country. I expressed my deepest sympathy to the family during the sentence proceedings, and I do so again now.

Subjective cases

Shamouil

20 Linard Shamouil was 20 years old at the time of the offence, and is now 23. His criminal history is, to say the least, disturbing. I put to one side some traffic offences, for which fines were imposed. In 2007, after a trial in the District Court, he was found guilty of attempted murder and was sentenced to an effective term of imprisonment of 12 years with a non-parole period of 9 years. (The sentence actually passed was reduced somewhat so as to take account of an initial period of custody before he was released on bail.) That offence was committed on 17 July 2004, before the present offence. Indeed, it was while he was on bail in respect of it that the present offence was committed.

21 In 2008 he pleaded guilty in the District Court to a charge of supplying a commercial quantity of methylamphetamine, and asked that four further charges of supplying prohibited drugs be taken into account on a Form 1. All five offences were committed in May 2006, that is, after the present offence. He was sentenced to imprisonment for 7 years with a non-parole period of 5 years, which was partly accumulated upon the sentence for the attempted murder. In the aggregate, those sentences expire on 29 January 2019, and he would be eligible for release on parole on 29 January 2017.

22 He remained at large after the murder of Mr Audisho until 3 June 2006, when he was arrested for the drug offences, and he has remained in custody since that day. The sentence for the attempted murder was directed to commence on that date. It was while he was in custody, on 17 July 2006, that he was charged with the murder of Mr Audisho. Thus, none of the period he has spent in custody is exclusively referable to the present offence.

23 I have been supplied with material concerning the attempted murder and the drug offences, including the remarks of the sentencing judges. The victim of the attempted murder was a man whom the offender believed to be having contact with his (the offender’s) girlfriend. He and that young woman had had an intermittent relationship over a number of years, although it seems that it was not a sexual one. Nevertheless, he was jealous of any contact she had with other men as, indeed, was she of his contact with other women. On the occasion in question he drove to the victim’s home, armed with a handgun. He lured the victim outside, and he fired at least six shots in his direction. The victim ducked for cover but sustained two wounds, one to the left foot and one to the right thigh. These caused him significant injury, but it seems that he made a complete recovery.

24 The trial judge, Neilson DCJ, found that the offence was premeditated and could not be described as a “crime of passion”. On the other hand, he noted that the offender was only 18 years old at the time and saw the offence as the product of emotional immaturity.

25 The drug offences were dealt with by Zahra DCJ. It is unnecessary to recite the facts of those offences. It is sufficient to say that the offender was the subject of an undercover police operation, and the principal offence and the four matters on the Form 1 represented a course of drug dealing in which he supplied methylamphetamine to an undercover police officer. His role was that of a courier. Steven David was also involved in the principal offence, a matter to which I shall return when I deal with his case.

26 The offender’s background appears from the affidavits of three of his aunts, Muna Shamouil, Amira Shamouel and Elen Shamuel, together with a psychological report of Mr Tim Watson-Munro.

27 He has not had an easy life. A member of Sydney’s Assyrian community, he is an only child who was born in Iraq. His parents’ marriage failed while he was an infant, and he has since had no contact with his father. He was raised by his mother, assisted by her sisters and his maternal grandmother. In the early 1990’s, in the aftermath of the Gulf war, the family left the country, travelling to Jordan and settling in Malta in 1993.

28 He was close to both his mother and his grandmother. Sadly, his grandmother died after their arrival in Malta. His mother had not enjoyed good health, and suffered from kidney disease during the period leading up to his birth. While in Malta, she was found to be suffering from breast cancer. She had one of her breasts removed and had to undergo chemotherapy. He was only eight years old at the time, and during his mother’s treatment he had to be cared for by neighbours until his aunt, Muna Shamouil joined them.

29 In 1996 they came to this country. Unfortunately, his mother’s cancer worsened and she died in the following year. As I understand it, it was around that time that Elen Shamuel settled in Australia, as did Amira Shamouel and her family. Between them, the three aunts cared for the offender. It will be remembered that the genesis of the offence was the deceased’s trading insults with the offender’s young cousin, NS. She was a member of his extended family, and it is against this background that it must be understood that he saw her as his sister.

30 He left school before completing year 10, whereupon he had a number of labouring jobs. Not surprisingly, he described to Mr Watson-Munro longstanding symptoms of depression, anxiety and low self esteem. He also told Mr Watson-Munro that during his teenage years he had been the subject of violence involving the use of a firearm and a knife, had witnessed a friend of his shot at a nightclub, and was concerned about what the psychologist expressed as “an ongoing litany of violence” in the area where he was living. This provides some explanation for his carrying a loaded gun on the occasion of the offence. Although this material was not the subject of sworn evidence, the Crown prosecutor did not take issue with it.

31 He did not report to Mr Watson-Munro a history of the abuse of alcohol or drugs. However, he did say that he had consumed a small quantity of cocaine and alcohol on the day in question, which aggravated his anxiety and may have had some bearing upon his capacity to control his impulses. Again, the Crown prosecutor took no issue with this account but, in all the circumstances, I do not consider it to be of significance.

32 Among the observations in the conclusion of Mr Watson-Munro’s report were these:

This man has been exposed to a multitude of serious life events including an absence of his father, the ongoing illness of his mother prior to her death when he was 11 years old, a number of alleged attacks upon him and the significant dislocation which he experienced through shifting from Iraq to Jordan and Malta, prior to his arrival in Australia.
An analysis of the depositional material confirms a very troubled child who was conduct disordered, disinterested and evidently constantly anxious. No doubt the loss of his mother shortly after arriving in Australia substantially destabilised him as a preadolescent, with this in turn establishing the basis for his problems later in life.

The psychologist went on to say that the offender had had time to reflect upon his actions while in custody and appeared to have developed insight into his wrongdoing, and that he had expressed “considerable remorse for the death of Mr Audisho and the impact that this has had upon his family and others.” Mr Watson-Munro was of the view that he requires “long term psychotherapy, coupled to more specific social skills training to help improve upon his low self-esteem and poor impulse control.”

33 I received a handwritten statement by the offender directed to the deceased’s family. Copies of it were made and were given to those family members. The statement is a clear expression of his remorse for his crime, which I accept as genuine. I also received a statement from his parish priest, Father Lazar, which also attests to his remorse and assures him of the support of his church upon his eventual release.

David

34 Steven David was 21 years old at the time of the offence, and is now 24. He has a brief criminal history, the only matter of significance being the offence of supplying methylamphetamine in which he was involved with Shamouil. He was arrested for that offence on 1 June 2006, and has remained in custody since. He was charged with the murder of Mr Audisho on 12 July 2006, while in custody. He pleaded guilty to the drug offence before Solomon DCJ, who sentenced him to imprisonment for 3½ years with a non-parole period of 2 years, commencing on 1 June 2006. Again, it is not necessary to recite the facts of that offence except to observe that Judge Solomon saw his role in it as “very minor.” His non-parole period expired on 31 May 2008 but, of course, he was not released because the present matter remained outstanding.

35 His background is to be found in a statement by his brother, Sargon David. He also is a member of the Assyrian community, born in Iraq. He has five older siblings. The family suffered privations during the Gulf war, as well as discrimination arising from their being Christian Assyrians. When the offender was a baby they fled from the country, making their way through Turkey and Kurdistan to Iran. There they remained for about four years, living in difficult conditions as refugees.

36 In 1990 the family was accepted by New Zealand as refugees and settled in that country until they moved to Australia in 1994. The offender was educated here to year 10 standard, whereupon he commenced apprenticeship as a bricklayer. Prior to his arrest he had been working in that trade, and I received a reference from his employer which speaks highly of him as a worker. It is clear from his brother’s statement, supported by statements from his parish priest and the family doctor, that he is a member of a hard working and respectable family, who have been shocked by his involvement in criminal activity but who remain supportive of him.

37 A statement by his fiancée, Sally Danial, also speaks highly of him and pledges her continuing support. To her and to his brother he expressed remorse for his involvement in the death of Mr Audisho, whom he had considered a good friend. He did so in a handwritten statement presented to me and, in his case also, I accept it as genuine.

Sentencing

Shamouil

38 Clearly, Shamouil must face a salutary sentence, in the light of the circumstances of the killing of Mr Audisho and his criminal history. As I have said, it is accepted that the purpose of the meeting on the occasion in question was to extract an apology from Mr Audisho and the shooting was spontaneous. Nevertheless, the Crown prosecutor argued that I should find that the offender intended to kill the deceased. There is force in that argument, given that three shots were fired and that one of the bullets penetrated the deceased’s torso. I have given this matter careful consideration, and find that I am not satisfied to the requisite degree that the offender had that intent. I am left in doubt about the matter because of his psychological makeup, and the fact that the shooting was clearly in the heat of the moment in the course of a fast moving event. He is to be sentenced upon the basis that he intended to inflict really serious bodily harm.

39 Of course, the objective gravity of the offence is increased by the fact that a firearm was used and that it was discharged in a public place. Nevertheless, I find that that objective gravity falls short of the mid range. That is a sufficient reason to refrain from setting the standard non-parole period of 20 years. Other reasons are to be found in the offender’s plea of guilty and the difficulties he faced in his disturbed background. The standard non-parole period takes its place as a guidepost in the sentencing exercise.

40 That said, he stands for sentence for a murder committed less than two years after he committed a serious offence of a similar kind, so that considerations of retribution and deterrence call for a more severe sentence than might otherwise have been warranted. Moreover, the fact that he committed the present offence while on bail for that earlier offence is a serious aggravating feature. As the Crown prosecutor pointed out, the sentence I pass should also reflect the community’s abhorrence at young men carrying guns, for whatever reason. The drug offences for which he has been sentenced, although committed after the murder, are an additional factor disentitling him to leniency. In so saying, I am guided by the principles examined by the Court of Criminal Appeal in R v MAK [2006] NSWCCA 381, 167 A Crim R 159 at [50]-[61].

41 In his favour, it is to be noted that he is remorseful and that he has pleaded guilty. The plea of guilty was late, but is still of significant utilitarian value. In my view, it should entitle him to a reduction of sentence of the order of 15 per cent. An examination of his criminal history, without regard to the other subjective material, would not inspire confidence in his prospects of rehabilitation. However, I think that those prospects are reasonable. He is still a young man, who has the capacity and the opportunity to put his disturbed background behind him. He has developed insight into the gravity of his crime and, hopefully, will have matured significantly by the time he is in a position to be released. Clearly, he enjoys continuing support from his extended family and from within his community.

42 I have considered whether I should find special circumstances warranting a departure from the statutory ratio between sentence and non-parole period because of his subjective case and the fact that the sentence I pass must be accumulated to a significant extent upon the sentences he is currently serving. I have decided that I should not take that course. The sentence I impose must be a heavy one, and a non-parole period within the statutory ratio would still him leave him with a lengthy period of parole eligibility. Moreover, I do not believe that a non-parole period less than that which I propose would be sufficient to mark his criminality.

43 An important and difficult aspect of the sentencing of this offender is the application of the principal of totality. As I have said, he is currently serving sentences which expire on 29 January 2019 and an effective non-parole period expiring on 29 January 2017. The effect of the sentence which I pass must be such as to reflect the totality of his criminality, while recognising that the severity of a sentence may increase at a greater rate than the increase of its length and that a very long total sentence may be “crushing”, so as to engender in the offender a sense of hopelessness and destroy such prosects as there might be of his rehabilitation. The principle of totality was also revisited in MAK at [15]-[18].

44 I propose to determine an appropriate sentence for the murder, and to reflect the principle of totality by allowing it to be served partly concurrently with the offender’s existing non-parole period. The circumstances of the offence and the aggravating features attending it call for a sentence of imprisonment for 22 years. This I shall reduce to 19 years in recognition of his plea of guilty. I shall fix a non-parole period of 14½ years, a little over 75 per cent of that term. That sentence will commence on 30 July 2011. In the result, the offender’s effective non-parole period will be increased by 9 years, followed by a period of parole eligibility of 4½ years.

David

45 I have set out earlier in these remarks the bases for David’s pleas of guilty to common assault and accessory after the fact to murder. As to the latter charge, it is necessary to have regard to the sentence passed upon Dilan Shaba for the same offence.

46 Shaba was sentenced by Berman AJ after pleading guilty to that offence. At that time it was the Crown case that both Shamouil and David were involved in the murder, and Shaba’s offence was the assistance he afforded to both of them. At that stage of the proceedings it was necessary to protect his identity from publication, and his Honour’s remarks were published as R v AB [2007] NSWSC 1517. He was sentenced on the basis that he drove Shamouil and David from the scene after the shooting. He drove Shamouil to his home, a journey of about five minutes, dropping David off in a back street on the way.

47 Shaba is also a member of the Assyrian community. He had a minor criminal record, which Berman AJ ignored for the purpose of sentence. His subjective case was otherwise favourable. Of particular significance was his assistance to the authorities in relation to the murder which, together with his plea of guilty, persuaded his Honour to allow him a 50 per cent reduction of sentence. He had been in custody for almost one year and eight months, and his Honour accepted that that was a sufficient non-parole period in the circumstances. Accordingly, he imposed a sentence of 2½ years imprisonment but set a non-parole period which enabled his immediate release.

48 The Crown prosecutor acknowledged that the criminality of Shaba and David as accessories after the fact fell into the lower end of the range. However, he submitted that their culpability was comparable and that I should take the undiscounted sentence of Berman AJ as the starting point in determining the appropriate sentence for David. However, I am persuaded by the argument of senior counsel for David that I should not approach the matter in that way. In my view, David’s criminality in disposing of Shamouil’s mobile phone and clothing was less than that of Shaba, who drove both offenders from the scene of the crime and delivered Shamouil to the safety of his home. Moreover, Berman AJ was constrained in the leniency he was able to extend to Shaba because of the length of time he had already spent in custody. Clearly, his Honour’s sentence was structured in a practical way to ensure that his custody came to an end. This is not to say that the sentence his Honour passed is to be ignored, but the sentence of David calls for a different approach.

49 As with Shamouil, I shall treat this offender’s subsequent drug offence as a factor disentitling him to leniency. In other respects he has a favourable subjective case. He also enjoys support from his family and within his community, he is remorseful, and I think that his prospects of rehabilitation are good. His pleas of guilty were late and, like Shamouil, they will earn him a reduction of the overall sentence of roughly 15 per cent. In his case there are special circumstances arising from the need to foster his rehabilitation and because the sentences I pass must be cumulative upon the sentence for the drug offence. Consideration must also be given to totality.

50 Although the offence of common assault did not involve actual violence, I consider that it calls for a short custodial sentence. That sentence will be concurrent with the sentence I pass for the offence of accessory after the fact to murder, in the interests of totality and because the two offences are closely linked. Both sentences will commence on 1 June 2008, that is, immediately upon the expiry of the non-parole period fixed in respect of the drug offence. His period of custody thereafter is fairly referable to the present offences.

51 For the common assault I shall impose a sentence of imprisonment for a fixed term of 6 months. For the offence of accessory after the fact, I would reduce a sentence of 3 years to 2½ years in recognition of the plea of guilty. I shall fix a non-parole period of 15 months. That will secure his release on 31 August 2009, whereupon he will be subject to the sanction of parole for a further 15 months.

Orders

52 Linard Shamouil, for the murder of Ashoor Audisho you are sentenced to a non-parole period of 14 years and 6 months, commencing on 30 July 2011 and expiring on 29 January 2026, and a balance of term of 4 years and 6 months, commencing on 30 January 2026 and expiring on 29 July 2030. You will now be eligible for release on parole on 29 January 2026.

53 Steven David, for the offence of common assault you are sentenced to imprisonment for a fixed term of 6 months, commencing on 1 June 2008 and expiring on 30 November 2008. For the offence of accessory after the fact to murder, you are sentenced to a non-parole period of 1 year and 3 months, commencing on 1 June 2008 and expiring on 31 August 2009, and a balance of term of 1 year and 3 months, commencing on 1 September 2009 and expiring on 30 November 2010. I direct that you be released on parole on 31 August 2009.

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