R v Sultani

[2023] NSWSC 645

Supreme Court

New South Wales

Medium Neutral Citation:

R v Sultani [2023] NSWSC 645

Hearing dates:

13 June 2023

Date of orders:

13 June 2023

Decision date:

13 June 2023

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

Sentenced to imprisonment for 20 years, commencing on 9 November 2020 and expiring on 8 November 2040, with a non-parole period of 15 years commencing on 9 November 2020 and expiring on 8 November 2035.

Catchwords:

CRIMINAL LAW – sentencing – murder – gangland violence – sentencing exercise overtaken by events – offender serving three life sentences for subsequent murders – brutal attack on rival drug dealer – aggravating circumstances – offence in company involving use of weapons – no intention to kill – transmogrification of shy and intelligent middle child of conservative and hardworking family into a notorious gangster – determinate sentence imposed – concurrent with life sentences – sad waste of a life

Legislation Cited:

Crimes Act 1900 (NSW), s 19A

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1, ss 3A, 21A(2)(c), 21A(2)(e), 21A(2)(n)

Cases Cited:

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Abdaly; R v Hosseinishoja (No 6) (Verdict) [2022] NSWSC 1658

R v Qaumi & Qaumi (No 12) [2017] NSWSC 134

R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654

Category:

Principal judgment

Parties:

Rex
Abuzar Sultani

Representation:

Counsel:
D Patch (Rex)
M Ainsworth (Sultani)

Solicitors:
Office of the Director of Public Prosecutions (Rex)
John B. Hajje & Associates (Sultani)

File Number(s):

2020/319535

Publication restriction:

This judgment has been anonymised in accordance with suppression orders made on 19 September 2022.

EX TEMPORE JUDGMENT (REVISED)

1. I am called upon today to sentence Abuzar Sultani for a murder committed just a little more than ten years ago. The victim of the murder, Nikola Srbin, died on 5 June 2013 and the assault which caused his death occurred on 16 May 2013. Since then, events have made this process somewhat academic, because on 17 December of 2021 Mr Sultani was sentenced to three life sentences by Fagan J: R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654.

2. Nevertheless, sentencing Mr Sultani for this crime is important because a man has been killed and the Court must vindicate the sanctity of all human life and the dignity of the individual deceased. It must also denounce the crime and impose appropriate punishment for what is unquestionably a serious example of gangland violence.

3. Mr Sultani pleaded guilty on 26 October 2022. The plea was entered before the commencement of his trial with two co-accused, each of whom were subsequently found not guilty,[1] and during the pre-trial processes leading up to the trial. The sentence has been delayed while the co-accused faced trial and for various other reasons of no importance at this moment.

   1. R v Abdaly; R v Hosseinishoja (No 6) (Verdict) [2022] NSWSC 1658.

4. The parties this morning tendered evidentiary material. Exhibit A, the prosecution's bundle, included an agreed statement of facts, Mr Sultani's criminal and custodial history and the judgment of Fagan J imposing the three life sentences. The prosecution also tendered (as Ex B) a report by Dr Olav Nielssen dated 28 October 2021. That report was originally tendered by the defence in the proceedings before Fagan J. It was put into evidence by the Prosecutor here to place in context a subsequent report prepared by Dr Nielssen on 6 June 2023, tendered on behalf of Mr Sultani in the present proceedings (Ex 1). Exhibit 2, also tendered by Mr Sultani, was an affidavit of his solicitor Mr Howard dated 9 June 2023, which was read.

Timeline of events and the identity of the relevant players

5. I will start with a timeline of events and important dates.

6. Mr Sultani was born on 16 January 1989, the son of Afghani immigrants.

7. The assault that gave rise to the current murder charge occurred on 16 May 2013. At that stage Mr Sultani was around 24 years of age. The deceased, Mr Nikola Srbin, died on 5^th of June of that year.

8. Before committing this offence, Mr Sultani had some previous troubles with the criminal law. He was first dealt with in the Children's Court in 2006 for an offence of robbery in company. He was then dealt with in the District Court in 2007, when he was just 18 years old, for some other offences including an aggravated “break and enter” and some related charges.

9. Since the murder of Mr Srbin in 2013, there were three offences for which he was sentenced to life imprisonment. They occurred on 30 March of 2016 when a man called Michael Davey was murdered, on 9 September of 2016 when a man called Mehmet Yilmaz was murdered, and on 14 November 2016 when a man called Pasquale Barbaro was murdered. He was subsequently arrested for those offences on 29 November of 2016, by which time the police investigation into the 2013 murder of Mr Srbin had caught up with Mr Sultani. On 9 November 2020 he was arrested in respect of that murder.

10. On 17 December 2021, Fagan J sentenced Mr Sultani to three life sentences commencing, according to the judgment, on 29 November 2016.

11. Turning then more particularly to the facts, I will start simply by identifying some of the characters or players in the narrative and their role.

12. In early 2013 Mr Sultani was in the early stages of what was to become a notorious career as a gangster, hitman and killer. He had during some earlier periods in custody come to meet some well-known criminal figures, including Joe Antoun and Pasquale Barbaro, each of whom has since – and notoriously – become the victims of separate murders. [2]

    2. R v Qaumi & Qaumi (No 12) [2017] NSWSC 134; R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654.

13. Mr Sultani was at that stage dealing in drugs and using a runner, or street dealer, who will be referred to as "Witness A". Witness A was also associated with one of Mr Sultani's cousins, a man called Adrian Moshref, also known as “Omar”. Again, their association began during a period when they were both in custody.

14. Witness A was also involved in dealing drugs with a man called Jonel Srbin out of premises in Redfern. Jonel Srbin was the father of Nikola Srbin, the deceased or victim in the current murder case. As far as I can tell, the Srbin group and the Sultani group were not directly associated with one another, but they were connected at least through the activities of Witness A.

15. In the early part of 2013 Mr Sultani was a member or nominee of the Rebels Motorcycle Club (“the Rebels”). He was in the process, along with others, of setting up a chapter of that club in Burwood. He was also, as I have said, involved in some drug dealing and Witness A was dealing on his behalf in the area around Redfern.

16. At some stage in the week or so before the murder, Jonel Srbin provided a quantity of the drug “ice” (or methylamphetamine or meth) to Witness A. They then fell into a dispute about payment for that ice. There are a number of messages and communications between the men showing that Jonel Srbin was seeking payment for the drugs and Witness A was attempting to off-load the ice or somehow find money to repay the so-called debt. It was not a great deal of money. At the same time, Jonel Srbin attempted to source some heroin, referred to in communications as "slow", from Witness A, and there was some evidence of Witness A attempting to source heroin to satisfy Jonel Srbin's requests.

17. On 16 May of 2013 this dispute over what is, on any view, a tiny bit of money, came to a very ugly head. Omar, Jonel Srbin and Nikola Srbin turned up at Witness A's apartment and an ugly scene ensued, which is described in the agreed facts in the following way:

“Moshref, Nikola (the deceased) and Jonel were demanding the remaining $400 from [Witness A] who did not have the money. [Witness A] and Jonel discussed money and [Witness A] disagreed with what was being said by Jonel.

[Witness A] took $400 worth of drugs from the methylamphetamine he received from Sultani and put it into a separate bag. He told Jonel that he could either take $400 cash (which they could not have immediately) or the bag of methylamphetamine which he could sell for profit above $400.

After ransacking the unit searching for cash, Moshref picked up the $400 bag of methylamphetamine and said, ‘this is just a gift from you to us’ to which [Witness A] responded words to the effect of ‘like fuck it is, it’s just a payment’. At this point, Moshref ‘king hit’ [Witness A] followed by Jonel who stood up from the couch and also punched [Witness A] to the face/head. [Witness A] was hit by each of Moshref and Jonel four times causing him to feel dazed.

Nikola put on black gloves and produced a knife. Nikola held the knife to [Witness A’s] right eye with the blade brushing against his eyelashes. Nikola held the blade to [Witness A’s] cheek, throat, ribs, stomach and back while saying ‘If you don’t come up with it we’re going to, I’m going to torture you for hours and hours and hours’. He was referring to the outstanding cash of $400. They gave [Witness A] until 18:00 to give them the $400. [Witness A] described the knife produced by Nikola as ‘a lock knife’ with a blade that was 2-3 inches long.”

18. Thus it was that the Srbins placed Witness A on a very short timeline to pay the outstanding drug debt. Witness A decided to seek Mr Sultani's assistance. His importuning of Mr Sultani is recorded in the facts sheet and there is no need to recount it here, but with some alacrity Mr Sultani agreed to intervene. His motive for doing so is not entirely clear but I accept the Prosecutor's submission this morning that it was most likely to warn off rival drug dealers from treating his associate or runner ill. Whatever be the motive, it was malevolent.

19. Mr Sultani arranged for a number of men to gather at the Burwood Rebel clubhouse. Meanwhile communications between Jonel Srbin and Witness A continued. There were discussions about Witness A being late, to which Mr Srbin responded that if he was even one minute late they would, “torture [him], kidnap [him] and torture [him] forever”.

20. Mr Sultani and his group of eight men departed Burwood with the common design that they would intervene on behalf of Witness A and, in particular, that they would do and threaten violence against Nikola Srbin and Jonel Srbin. They were armed. One man was armed with a baseball bat; another was armed with a mallet. Mr Sultani himself had a gun but the Prosecutor accepted in submissions that this was more for show and that there was no intention to use the gun. Tragically, as the incident panned out, the baseball bat and the mallet were used with fatal effect.

21. Put in plain terms, the plan, hatched by Mr Sultani at the behest of Witness A, was to beat up Mr Nikola Srbin. Again, with fairness, the Prosecutor submitted that there was no intention to kill Nikola Srbin, nor even an intention to inflict grievous bodily harm upon him. The basis of liability for murder is what is known in the law as “extended joint criminal enterprise”. Mr Sultani made it clear that Omar Moshref, his cousin, was not to be subject to violence.

22. Once they got to the scene at Redfern – and there are pictures in the statement of facts showing the apartment block – Witness A identified Nikola Srbin to the group and shortly thereafter the group set upon him. What they did is described in the agreed facts as follows:

“The group of eight men (Sultani and [Witness A] were not among those who struck the blows) commenced assaulting the deceased including hitting him to the head, legs, and body. The deceased was punched as well as struck with weapons.

The group of men continued to assault the deceased while he was on the ground. He was hit and kicked multiple times by the eight-men while he was on the ground. Although Sultani was in charge of the group, he was metres away with his cousin, Moshref, and did not himself physically assault the deceased.

The deceased was hit to the head with a rubber mallet. One of the men took a swing with a wooden baseball bat and hit the deceased in the head while he was lying on the ground. When the deceased was hit with the bat it rendered him unconscious on the ground.

The assault lasted for approximately two minutes in total. Immediately after the assault, Sultani and the remaining men exited the courtyard through the Albert Street entrance and returned to their vehicles. Moshref walked through the Albert Street entrance before returning to the deceased in the courtyard. [Witness A] walked to a nearby associate’s unit … Sultani and the 8 other men left the area in their vehicles.”

23. Nikola Srbin suffered serious head injuries. He was placed on the lounge at a friend's place, where he remained from around 9.30pm until 9.40pm when an ambulance was called. He was in the hospital from 16 May 2013 until his death on 5 June 2013. A number of medical interventions were attempted and those are set out in the statement of facts. It is unnecessary to set them out here. In the end the blows or blow to Nikola Srbin’s head was fatal and he was never likely to, and never did, recover.

Objective seriousness

24. Those facts demonstrate a very serious case of murder. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years if it falls within the middle range of objective seriousness. [3]

    3. Crimes Act 1900 (NSW), s 19A; Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1.

25. There are some aggravating features. This was planned criminal activity, although I accept the concession made by the Prosecutor, and the submission made by Mr Ainsworth, that the planning was rudimentary. Nonetheless, it was a planned, organised and savage criminal attack by eight men, some of whom were armed, on one man. It involved the use of weapons, and it was committed in company. [4]

    4. Crimes (Sentencing Procedure) Act, ss 21A(2)(c), 21A(e), 21A(n).

26. The Prosecutor submitted, as I have said, that there was no intention to kill or even to inflict serious bodily harm. Because the basis of liability was extended joint criminal enterprise, it was put by the Prosecutor that Mr Sultani had "the least serious” state of mind for murder.

27. Nevertheless, the aggravating features against which that submission, which I accept, is balanced means that on my evaluation the case does fall within the middle range of objective seriousness. For that reason, the 20-year standard non-parole period has a role to play as a guidepost, or yardstick, in accordance with the High Court's decision in Muldrockv The Queen (2011) 244 CLR 120; [2011] HCA 39.

28. However, I find that within that broad and putative middle range, this case falls towards the lower end of that range. Accordingly, the sentence that I will impose will include (as one component) a non-parole period less than the standard non-parole period, bearing in mind that there is also to be a reduction in the appropriate sentence based on Mr Sultani's late plea of guilty. In reaching those conclusions I have taken into account the important concessions made by the Prosecutor.

29. The reality remains that nothing that I do in sentencing Mr Sultani today will impact on his custodial situation because of the three life sentences imposed by Fagan J. Nevertheless, the sentence must reflect the gravity of the crime and the purposes of punishment provided for in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence must denounce this kind of wanton gangland violence. It must deter others, and Mr Sultani himself, from committing such crimes. It must vindicate the dignity of Nikola Srbin. It must provide adequate punishment for serious criminal offending. As the parties submitted, it must also, theoretically at least, foster rehabilitation, even with that being a somewhat pointless exercise in the context of a young man serving three sentences of life imprisonment.

Mr Sultani’s subjective case

30. Subjectively, a lot could be said about this young man and his transmogrification from a shy, quiet, intelligent middle child of a conservative, hardworking family to a notorious killer and gangster. However, I will keep it brief.

31. Mr Sultani was born in Australia. [5] His parents were from Afghanistan and were part of a minority group of Shia Muslims; his father was Hazara and his mother was of Qizilbash ethnicity. It is reasonably notorious that the Hazara minority at least was treated badly in Afghanistan by the Pashtun majority. His parents left Afghanistan after the Russian invasion of their country. They migrated to Australia in 1986. Mr Sultani watched his parents suffer from post-traumatic stress disorder and depression due to witnessing conflict and fleeing Afghanistan as refugees.

    5. In delivering these remarks ex tempore, I mistakenly said Mr Sultani was born in Afghanistan.

32. Mr Sultani’s parents did not have much money and he grew up in a housing commission complex in Westmead. He described his home as “rough but very safe” and said he was exposed to antisocial groups, intimidation and threats while growing up in public housing. He completed primary school and high school. He was suspended from high school several times for fighting but was never expelled.

33. After he was first released from prison, Mr Sultani worked part time with his father. He then got a job in construction where he witnessed a lot of extortion and intimidation. He also ran a traffic control company and labour hire company, invested in a takeaway shop, bought two properties and started other small businesses.

34. Mr Sultani joined the Rebels for the “brotherhood and the backup” and “to be a part of something”. He became desensitised to violence resulting from “multiple threats on [his] life”, thought he was “above the law” and viewed violence and having weapons as “the norm” and what was done “to survive” and “look after yourself”.

35. Mr Sultani said that he has never taken drugs, alcohol or cigarettes. In the community he supported several charities that build wells, provide food and sponsor schools in Afghanistan and hopes to continue supporting these charities in prison.

36. He is obviously a highly intelligent man. At the time of his arrest, he was enrolled in a Master of Business Administration and in his first subject achieved a distinction.

37. It is a very sad waste of a life.

38. There is evidence, subject to some dispute between the parties, of Mr Sultani's regret, remorse and contrition. That is found significantly in the most recent report of Dr Nielssen (Ex 1). Mr Sultani told the psychiatrist:

“[I]n the end a young person has lost his life and I am responsible for my actions and if I did not enable it to happen he would not have died … after that I made some bad decisions … I went more under the radar and got into that murky world of criminality … it led to making more bad decisions … I now realise if you make a mistake you have to own up to it and face it.”

39. Mr Sultani said, and I am reading from Dr Nielssen's second report, that the death of Mr Srbin was unrelated to his subsequent offences. He said:

“[T]his case was different … this was not meant to happen … he was not supposed to die and I felt bad and want to say sorry to the family … there was no plan … the plan was to confront them and that was it … it all happened so fast.”

40. Mr Ainsworth concedes that aspects of those statements are inconsistent with the agreed facts, and I accept that. But I also accept Mr Ainsworth's submission that there was really no point in Mr Sultani saying those statements of regret, remorse and contrition at the time because by then he was serving, and had been serving for some time, the three life sentences. I accept that when those statements were made Mr Sultani demonstrated some genuine remorse for his behaviour. It also marries up with the fact that there was no intention in this case for Mr Nikola Srbin to be seriously injured.

40. Importantly in Dr Nielssen's report, there were no diagnoses of any significant mental illness or cognitive issues that would explain these offences. There is some reference to Mr Sultani suffering various depressive episodes including around the time of this offence.

41. The evidence also shows that Mr Sultani has been subject to particularly harsh custodial conditions for several years. He is fatalistic in his approach. He told Dr Nielssen, "if I died tomorrow that would be okay." He has been subject to lockdowns and been part of the strictures of the COVID period. He is incarcerated in the High-Risk Management Unit, which has its own notoriety, the details of which are set out in his solicitor's affidavit.

42. He was subjected to a serious assault whilst in custody by a fellow Afghani inmate, who is also a notorious killer. The details of that are set out by Dr Nielssen. Mr Sultani was handcuffed and unable to defend himself when he was slashed with a homemade weapon featuring a razor blade.

Sentence

44. I take all of the above matters into account.

45. The parties agreed that the belated plea of guilty should result in a 10% reduction based on its utilitarian value. It was entered very late, but the reality is that the trial of the co-accused was able to be conducted with great efficiency and quickly as a result of the fact that Mr Sultani was not involved in it. It became a single-issue trial; that issue being the credibility of Witness A. He did not have any.

46. It would be pointless to find, and I do not find, that there are “special circumstances” warranting an adjustment of the non-parole period downwards. Again, the three sentences of life imprisonment make such an exercise redundant. In any event the length of the sentence is such that, if it were standing alone, there would be no real basis to extend the period of parole.

47. Synthesising all of that, and keeping in mind the primary role that the protection of the community must have, I would commence with a total sentence of a little more than 22 years. After the application of a 10% discount for the utilitarian value of the plea of guilty and with some rounding, I will impose a total sentence of 20 years. The non-parole period will be 15 years. This will be backdated to the 9th of November 2020.

Orders

48. Abuzar Sultani, for the murder of Nikola Srbin, you are convicted and sentenced to a non-parole period of 15 years commencing on 9 November 2020 and expiring on 8 November 2035. There will be a balance of term of 5 years expiring on 8 November 2040.

49. Theoretically you would be eligible for consideration for release to parole at the conclusion of the non-parole period, but given other matters, that is not really a possibility.

50. If you are released, I warn you that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to you and to the crime for which you have been sentenced and I direct your legal representatives to explain the possible implications of that Act to you.

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Endnotes

Decision last updated: 15 June 2023