R v Sultani; R v Munshizada; R v Baines; R v Danishyar

[2021] NSWSC 1654

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

6, 7, 8 and 13 December 2021

Date of orders:

17 December 2021

Decision date:

17 December 2021

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

Abuzar Sultani:

For each of the murders of Michael Davey at Kingswood on 30 March 2016, Mehmet Yilmaz at St Marys on 9 September 2016 and Pasquale Barbaro at Earlwood on 14 November 2016 Abuzar Sultani is sentenced to imprisonment for life, each such sentence to commence from 29 November 2016.

Siar Munshizada:

For each of the murders of Michael Davey at Kingswood on 30 March 2016 Mehmet Yilmaz at St Marys on 9 September 2016 and Pasquale Barbaro at Earlwood on 14 November 2016 Siar Munshizada is sentenced to imprisonment for life, each such sentence to commence from 29 November 2016.

Joshua Donald Baines:

(1) For the murder of Pasquale Barbaro at Earlwood on 14 November 2016 Joshua Donald Baines is sentenced to imprisonment for a non-parole period of 27 years commencing on 29 November 2018 and expiring on 28 November 2045 and a balance of term of 9 years commencing on 29 November 2045 and expiring on 28 November 2054.

(2) Joshua Donald Baines will be eligible for release on parole at the expiry of the non-parole period

Mirwais Danishyar:

(1) In respect of count 1 on the indictment dated 1 March 2021, that he did murder Pasquale Barbaro at Earlwood on 14 November 2016, Mirwais Danishyar is sentenced to imprisonment for a non-parole period of 11 years commencing on 29 November 2016 and expiring on 28 November 2027 and a balance of term of 4 years commencing on 29 November 2027 and expiring on 28 November 2031.

(2) Mirwais Danishyar will be eligible for release on parole at the expiry of the non-parole period.

(3) In respect of count 2 on the indictment dated 1 March 2021, being that he did assist any one or more of Abuzar Sultani, Joshua Baines and Siar Munshizada, knowing that any one or more of them had committed the murder of Pasquale Barbaro at Earlwood on 14 November 2016, Mirwais Danishyar is sentenced to imprisonment for a fixed term of 2 years commencing on 29 November 2016 and expiring on 28 November 2018.

Catchwords:

CRIME – Sentence – Murder – Three murders on separate occasions – Premeditation and extensive planning – context of organised criminal activity – Life sentences

CRIME — Sentence – Accessory after the fact – Getaway driver

Legislation Cited:

Crimes Act 1900 (NSW)

Court Suppression and Non-publication Orders Act 2007 (NSW)

Crimes (Sentencing Procedure) Act) 1999 (NSW)

Surveillance Devices Act 2007 (NSW)

Cases Cited:

Aoun v R [2007] NSWCCA 292

CC v R; R v CC [2021] NSWCCA 71

Ibbs v The Queen (1987) 163 CLR 447

R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469

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

R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19

R v Miles [2002] NSWCCA 276

R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834

R v Sultani [2021] NSWSC 1611 – Restricted

Rogerson v R; McNamara v R [2021] NSWCCA 160

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

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Category:

Sentence

Parties:

Regina
Abuzar Sultani
Siar Munshizada
Joshua Baines
Mirwais Danishyar

Representation:

Counsel:
D Patch and A Morris (Crown)
D Dalton SC (Sultani)
S Odgers SC (Munshizada)
R Wilson SC (Baines)
P D Lange (Danishyar)

Solicitors:
Solicitor for Director of Public Prosecutions
Hajje Lawyers (Sultani)
Jamieson Criminal Law (Munshizada)
K Kyriacou & Co (Baines)
Zahr Partners (Danishyar)

File Number(s):

2016/358098; 2016/358164; 2016/358034; 2016/358151

Publication restriction:

No

Judgment

1. Abuzar Sultani and Siar Munshizada are to be sentenced for three murders. The victims and the dates of the offences are as follows:

Michael Davey at Kingswood on 30 March 2016

Mehmet Yilmaz at St Marys on 9 September 2016

Pasquale Barbaro at Earlwood on 14 November 2016.

2. Abuzar Sultani pleaded guilty to the Yilmaz and Barbaro murders on 11 March 2019 and to the Davey murder on 18 December 2019. Sentencing of him has been deferred pending the trials of his co-accused so that the sentences imposed may reflect the parts played by each offender in each crime. Siar Munshizada defended the charges and was found guilty by juries in separate trials that were conducted for each matter. The verdicts were returned on 11 March 2020 (Davey), 26 April 2021 (Barbaro) and 25 May 2021 (Yilmaz).

3. Joshua Baines and Mirwais Danishyar are each to be sentenced only for the murder of Pasquale Barbaro. Both were also charged with Mehmet Yilmaz’ murder but were acquitted. On 6 November 2020 Joshua Baines was found guilty of the murder of Pasquale Barbaro after trial by jury. Mirwais Danishyar was prosecuted for the Barbaro murder under s 346 of the Crimes Act 1900 (NSW) as an accessory before the fact to the commission of the principal offence by Abuzar Sultani. On the same indictment he was charged with having been an accessory after the fact to that murder, on the basis that he assisted Sultani and/or the other three to escape detection and apprehension. His jury returned verdicts of guilty on both counts on 19 March 2021.

4. For brevity each of the offenders will be referred to hereafter by surname only.

Victim impact statements

5. I record at the outset of these remarks that I have considered carefully the victim impact statement read in open court by Mr William Davey, father of Michael Davey. His statement attests to the grief and loss suffered by himself and by Michael Davey’s mother, brother, partner and children.

6. In relation to the death of Mehmet Yilmaz, I have considered the report of Dr Yvonne Skinner, who is treating Ms Cigdem Akin, the fiancée of the deceased. She continues to suffer mentally from having witnessed her young man shot to death in front of her only weeks before they were to be married. Mehmet Yilmaz left a brother and other family members who have also been greatly affected.

7. With respect to Pasquale Barbaro, I have considered the victim impact statement of Ms Cheryl Gilroy, his mother. I accept her description of the loss felt by herself and by Pasquale Barbaro’s grandmother, brother and children.

8. The makers of these statements have expressed themselves with strength and grace to ensure that, in passing sentence, the Court should know that Michael Davey, Mehmet Yilmaz and Pasquale Barbaro were valued and loved human beings and that their loss is deeply felt.

Maximum penalties

9. The maximum penalty for murder is life imprisonment and a standard non‑parole period of 20 years applies under Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). It has been held that the standard non-parole period of 20 years applicable to murder under Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act is not applicable to a person convicted as an accessory before the fact: Aoun v R [2007] NSWCCA 292 at [27]-[30]. Pursuant to s 349(1) of the Crimes Act Danishyar’s conviction as an accessory after the fact to the murder of Pasquale Barbaro carries a maximum penalty of 25 years. No standard non-parole period is prescribed.

10. Under s 21(1) of that Act a specific term of years may be fixed, instead of life. However s 61 provides as follows (emphasis added):

61 Mandatory life sentences for certain offences

(1)   A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.

[…]

(3)   Nothing in subsection (1) affects section 21 (1).

11. In R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [36], Wood CJ at CL (Tobias JA and Hidden J agreeing) referred to the tension between the apparent mandatory requirement to impose a life sentence where a case falls within s 61(1) and the preservation by s 61(3) of the s 21(1) discretion to impose a lesser sentence. His Honour said this:

That tension was recognised in decisions such as R v Petrinovic [1999] NSWSC 1131, and also in R v Harris (2000) 50 NSWLR 409. It has been resolved in favour of recognising the continued existence of the discretion, notwithstanding the fact that the s 61(1) criteria are met, where the offender’s subjective circumstances justify a lesser sentence than one of life imprisonment.

At [37] Wood CJ at CL referred to this as a “two step process, including the discretion, which has been followed in the application of s 61 [citations omitted]”.

12. In CC v R; R v CC [2021] NSWCCA 71 Adamson J made the following observations about s 61(1) (citations omitted):

[81] […] The focus of the court’s attention in s 61(1) is the offender’s “level of culpability in the commission of the offence”. The assessment of this matter involves consideration of objective factors, such as the objective seriousness of the offence, as well as subjective matters, such as the offender’s background, criminal history and any mental disease, disorder or incapacity. By contrast, the instinctive synthesis required as part of the exercise of the sentencing discretion involves a consideration of all relevant matters, not merely those that affect the offender’s level of culpability in the commission of the offence. There is a significant overlap in the matters germane to s 61(1) and those germane to sentencing but the matters relevant to s 61(1) are, inevitably, a subset of the matters relevant to sentencing […]. Matters relevant to sentence which fall outside the purview of s 61(1) of the Act include whether the offender has demonstrated remorse or contrition, whether the offender has pleaded guilty and at what time the plea has been offered or entered, and whether the offender has given assistance to authorities in respect of this offence or other offences committed by the offender or by others.

[83] If s 61(1) arises for consideration, the sentencing judge will be obliged to consider the matters that affect the offender’s level of culpability for the offence. Even if the judge reaches the state of satisfaction provided for in s 61(1), there remains a discretion to impose a lesser sentence. The order in which relevant matters are addressed in the reasons is a matter for the sentencing judge.

13. This passage was endorsed by the Court of Criminal Appeal in Rogerson v R; McNamara v R [2021] NSWCCA 160 at [635]. The Court referred to [85] in Adamson J’s judgment as “a form of two stage test”, consistently with the terminology of Wood CJ at CL in R v Merritt. The Court of Criminal Appeal said this at [636]:

[What] differentiates the two stages is whether the relevant factor is a “circumstance surrounding or causally connected to the offence” [so as to bear upon culpability for the purposes of s 61(1)] and that can include matters such as the offender’s mental state, motive or personal background. Some matters may be relevant to both stages.

14. First, for the purpose of determining whether s 61(1) is engaged I will have to consider, in relation to each murder as committed by each offender, the objective seriousness of the individual offender’s acts, his motive, his intention and any features of his personal circumstances or condition that may reduce or increase the level of his culpability. If, in relation to any of the murders as committed by any of these offenders, I determine that “the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence”, then it will be necessary to evaluate subjective factors such as antecedents, remorse, prospects of rehabilitation and, in the case of Sultani, pleas of guilty, in order to decide whether a determinate sentence should be fixed.

15. Of the principles established by authority for determining at the first stage whether s 61(1) is engaged, four in particular are important to the present case. First, it is relevant to consider the common law position that a maximum penalty prescribed by statute is reserved for offences “in the worst category”: Ibbs v The Queen (1987) 163 CLR 447 at 452. In R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 Wood CJ at CL made the following observation about this, with the approval of the other members of the Court:

[87] It is not at all clear to me that the assessment whether a case falls within the “worst case category” at common law is any different from that postulated under s 61(1). The decision in Veen v The Queen (No. 2) (1988) 164 CLR 465, permits reference at common law to background material for the purpose of assessing moral culpability, and dangerous propensity and there is long standing precedent for regard to be had to each of the matters specified in s 61(1) when considering sentence.

16. This view of the substantial equivalence between the s 61(1) criterion and the common law concept of the worst category of case was accepted in R v Miles [2002] NSWCCA 276 at [5]-[7] and [140]. I proceed on the basis that statements in the authorities concerning features of an offence that would place it in the worst category are relevant to my determination of whether the criterion prescribed in s 61(1) is met. In R v Harris, Wood CJ at CL quoted from earlier decisions as follows:

[84]   The features required for qualification in the “worst case category” were defined in Twala (NSWCCA 4 November 1994), where it was said:

“in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)…”

[85]   “Heinousness” has been described as follows:

“The adjective ‘heinous’ which gives the noun ‘heinousness’ its meaning has been variously defined as meaning atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked. The test to be satisfied is thus a substantial one”: R v Reginald Keith Arhurell (Hunt CJ at CL unreported 3 October 1997).

17. Secondly, there is potential for there to be a range of gravity even within the worst category of offence. This was recognised by the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48, in the following passage (citations omitted):

[18]   […] Once it is recognised that an offence falls within the "worst category", it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence.

Similarly, in the range of offences of murder that will satisfy the criterion in s 61(1), there will be grave and still more grave instances of this crime.

18. Thirdly, for s 61(1) to be engaged, the criterion of whether “the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met” through life imprisonment must be established beyond reasonable doubt and the onus of proving this is on the Crown: R v Merritt at [5] and [35].

19. Fourthly, the statutory criterion may be satisfied if the offender’s culpability is “so extreme” that the necessity for life imprisonment is indicated by any combination of the four indicia, “retribution, punishment, community protection and deterrence”. In R v Merritt Wood CJ at CL expressed this proposition as follows:

[52]   In my assessment, the primary focus of the legislation is directed towards how extreme the offender's culpability is. Both R v Harris and R v Miles [2002] NSWCCA 276, and the various decisions that have led to life sentences, have emphasised the importance of this factor, and for the need for the court to find features of very great heinousness, along with the absence of any facts mitigating the seriousness of the crime. In these circumstances, I can see no reason why the section should not apply, if the culpability is so extreme that any combination of the stated indicia would lead to the view that the only sentence, that can be passed, is one of imprisonment for life.

[53]   While in most cases of extreme heinousness each of the relevant elements will be present to some degree, it is unlikely that they will be present to the same degree. For example, that might be so in the case of an offender who has a significant mental condition, which renders him of very great continuing dangerousness, but in whose case, in accordance with established sentencing principle, the element of personal deterrence may be of limited importance.

[54]   […] It follows that the absence of any finding of future dangerousness would not rule out an application of the section.

20. In the same case Tobias JA addressed this question as follows:

[3]   In the application of this test, it is possible (as Wood CJ at CL illustrates in [53] of his judgment) that one or more of the statutory indicia may be of less significance than the other or others or that one or more of them may be inapplicable. This is so in the present case due to the absence of any finding by the trial judge of future dangerousness or need for future community protection.

[4]   Notwithstanding the absence of one or more of the statutory indicia, the presence and level of significance of the other or others may still lead to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life.

[5]   Obviously, the absence of any one or more of those indicia will make it more difficult for a trial judge to reach the state of satisfaction required by the section before such a sentence is mandated (subject always to s 61(3)). This is particularly so as the trial judge must be satisfied beyond reasonable doubt that the level of culpability is so extreme as to require the imposition of that sentence.

[6]   It would, I tend to think, be a rare case where the total absence of one or more of the indicia will still permit the relevant degree of satisfaction to be attained. On the other hand, as his Honour observes in [53] of his judgment, absence of the need for personal, as distinct from general, deterrence, is unlikely to influence the decision to any significant degree.

[7]   As his Honour also observes, it is the combination of the statutory indicia established on the evidence to which regard must be had. It is only where the significance of those indicia, taken in combination, leads inevitably to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life, that such a sentence must be imposed.

Non-publication orders and separate trials

21. The four offenders were arrested and charged with the murder of Pasquale Barbaro on 29 November 2016. Charges for the other murders were laid during 2017 and 2018. The first of the prosecutions reached this Court in March 2018. A joint trial of the Barbaro murder was listed for 12 November that year. For reasons explained in another judgment (R v Sultani [2021] NSWSC 1611 – Restricted) that trial could not proceed and a number of factors have caused extensive delay since. The causes of delay have included lack of representation for the accused (see R v Munshizada; R v Danishyar; R v Baines (No 2) [2019] NSWSC 834) and the introduction of public health restrictions.

22. While the trials have been pending, non-publication orders have prevented media reporting of the evidence and the juries’ verdicts with respect to all three murders. Again for reasons explained in the other judgment referred to above, prohibition of publication had to remain in place until all four of the accused had been tried in separate and sequential trials on each of the charges that they faced. There have been a total of seven trials, each occupying between three and six weeks, utilising about 29 weeks of Court and jury time.

The offenders’ criminal organisation

23. Each of the murders for which sentence is now to be passed was premeditated on the part of each offender, carefully planned by Sultani and carried out by the respective participants in a closely coordinated fashion. This occurred in the context of the four offenders’ full time engagement over the preceding three to four years as the inner circle of a group conducting organised criminal activity. The ages of the offenders in 2016 were: Sultani 27 years; Munshizada 27-28 years; Baines 23-24 years and Danishyar 23 years.

24. Sultani was born in Australia in 1989 to parents who emigrated from Afghanistan in 1986. Munshizada was born in 1988 in Afghanistan. He came to Australia with his parents in late 1989, when he was one year old. The two of them met in prison in 2008 or 2009 when they were about 20 years old. Sultani was serving a sentence for, amongst other offences, aggravated break and enter. Munshizada’s sentence was 2 years and 3 months for aggravated robbery and other offences. They had both been released by July 2010 and continued to associate out of prison. Munshizada introduced Danishyar, his cousin, to Sultani during 2010. In about 2012 Sultani arranged employment for Danishyar, then aged 19, as a payroll clerk in a construction industry labour hire business conducted by Sultani. Baines has no common ethnic background or family connection with the other three. He was born in New South Wales and his mother is indigenous. He first became acquainted with Munshizada and then Sultani in about October 2013.

25. From about late 2013 through 2016 all four offenders were associated with about 13 other men of similar age in an organised criminal group led by Sultani. A considerable amount of evidence about the origins, membership and functioning of this group has been given by three police registered sources who were called by the Crown in the trials of the offenders. They have been referred to throughout the trials and the subsequent sentence proceedings by abbreviations of their respective registration numbers, in the form RS ###. Their full names have been suppressed by orders of the Court and publication of any evidence that might tend to identify them is prohibited, in the interests of their protection.

26. During 2012 Sultani, RS 093 and others formed the Sydney City Chapter of the Rebels outlaw motorcycle gang. Several friends and associates of Sultani began to attend meetings of that Chapter, including Munshizada and Danishyar. Baines was associating with the group by October 2013. In about late 2013 or early 2014 Sultani and his associates left the Sydney City Chapter to establish the Burwood Chapter of the Rebels. The associates became patched members of the Burwood Chapter, including Munshizada and later Danishyar. Sultani was the first Sergeant-at-Arms of this chapter. RS 093 described the position of Sergeant-at-Arms as high-ranking, with a role of enforcing Club discipline and inflicting punishments. Baines joined the Chapter at its inception in 2014.

27. RS 093 described the Burwood Chapter as “very tight, […] very closed, very selective”. He did not see anyone attempt to recruit additional members. From mid-2014 Sultani became president of the Burwood Chapter. Munshizada took the position of Sergeant-at-Arms from 17 June 2014 until sometime in 2015. The group included two brothers of Korean descent, Alex and Donald Kang, and Raymond Zhu. Zhu worked in an office at Five Dock that was maintained by Sultani. He was to some extent engaged in a business that Sultani conducted from the Five Dock office of providing traffic control services to the construction industry. Zhu also performed tasks to assist group members in their criminal activities.

28. From some time in 2015 Sultani’s group of about 17 ceased to regard themselves as part of the Rebels organisation. Those who had been members of the Burwood Chapter and their non-member associates continued to conduct organised criminal activity under the direction of Sultani. This included drug supply, intimidation and stand-over in the collection of debts, dealing in firearms, motor vehicle theft and procurement of false registration plates. By early 2016 Sultani and his group used a warehouse at Hornsby to store the stolen vehicles, fitted with false plates so that they could be driven on public streets without being identified or stopped by police. The lessee of the Hornsby premises was a company whose nominal director was a friend of Sultani from school days.

29. The evidence of the Registered Source witnesses establishes that the four offenders were extremely close and usually in each other’s company. From February 2016 until their arrest on 29 November 2016, Sultani and Munshizada shared accommodation at Unit 2803 No 1 Australia Avenue, Olympic Park. From August 2016 until his arrest on 29 November 2016, Baines resided nearby with his partner at a unit in Burroway Road, Wentworth Point. Danishyar resided with his parents at Cherrybrook.

Sultani’s direction of the group, use of violence, possession of firearms

30. RS 093 and RS 670 have both attested to Sultani’s direction of the members of his group, both when affiliated with the Rebels and after. Sultani issued instructions for the commission of drug and firearms offences and other criminal acts. Group members were expected to, and did, carry out these instructions without question. Sultani was the focal point for communications. Individual members were at times required to carry out instructions in ignorance of what orders had been given to other members. This was done deliberately to ensure that if police should uncover any part of the activity, a member who might be arrested would not have the overall picture.

31. Sultani used and threatened violence against group members and associates. He directed others to carry out violent acts. So far as the evidence shows, his actual or threatened violence against group members was directed towards those who were not within his inner circle. Those to whom Sultani was closest all shared his Afghan ethnicity, with the exception of Baines. There is no evidence of violence or threats by Sultani against Munshizada, Danishyar or Baines. RS 093 and RS 670 gave evidence of a perception amongst members of the group, generally, that Sultani was intimidating and threatening and that he could not be challenged, resisted or opposed without risk of violent repercussions. By 2016 Sultani had control over a significant arsenal of firearms and ammunition. The weapons were stored by others, at Sultani’s direction, in various safe-houses around Sydney.

Use of encrypted email messaging

32. Sultani procured Phantom Secure BlackBerry handsets for all active members of his group. The handsets had no phone or SMS text capability and no GPS receiver or camera. They had been modified to eliminate all electronic functionality except the ability to send and receive encrypted emails. The handsets were configured only to communicate by email on a dedicated network. These devices could only receive emails from or send emails to other similarly modified devices, connected through the same network and having addresses that consisted of a username or “handle” and the domain name “ghostmessage.mobi”. Sultani himself had several such modified BlackBerry handsets for his own use. The server that hosted the domain name was located outside Australia and was maintained by the Canadian company that modified the BlackBerry handsets and programmed them to encrypt.

33. In the years 2014-2016 police were unable to intercept emails sent between members of the group on their modified Phantom Secure BlackBerry handsets. The group incurred significant expense to maintain this level of security in their communications. Each unit was protected by password, which was extremely difficult to penetrate. After seizing a number of the devices in November 2016 police were unable to gain access to their stored content, including recently sent messages and contact lists, until 2019. The capacity to unlock the seized devices was developed by New South Wales police with the assistance of the Royal Canadian Mounted Police, within whose jurisdiction the Phantom Secure company operated.

34. Raymond Zhu administered the private network of these devices for Sultani’s group. He had the technical ability to erase all stored content on any BlackBerry handset that was in use by a group member, by transmitting a signal to the device through the internet. This was done in the event of a group member being arrested in possession of an encrypted BlackBerry. The four offenders who are now before the Court were each in possession of one or more of these devices when arrested on 29 November 2016. Arresting police seized the devices and prevented them from receiving a wireless signal by which their content might be erased. Nearly three years later police were able to recover from some of the devices stored messages that were significant in proving the involvement of Munshizada in the murder of Mehmet Yilmaz on 9 September 2016 and the involvement of Munshizada, Baines and Danishyar in the murder of Pasquale Barbaro on 14 November 2016.

35. Sultani went to great lengths to gain from the Phantom Secure BlackBerry encrypted email system maximum frustration of police surveillance. He instructed other members of the group to bring only these devices and not ordinary mobile phones to their meetings with him and not to talk about criminal activities on mobile phones but only to send encrypted emails. At times he instructed group members to communicate with him by encrypted email even when they were present in each other’s company, in order to defeat surveillance devices that police may have installed in premises or vehicles.

Frustration of law enforcement by use of encrypted messaging

36. By late 2015 police were actively investigating the offenders and others in Sultani’s group on suspicion of their involvement in drug and firearms offences. By early 2016, there were sufficient grounds to justify the issue of warrants for the installation of optical and listening surveillance devices in locations frequented by group members. The warrants also authorised placement of tracking and listening devices in motor vehicles used by the group. The investigation was well resourced and thorough but encrypted email communications enabled the group to continue their organised criminal activities and to evade police efforts to gather sufficient evidence to lay charges. But for the group’s possession of this means of communication the investigation might well have resulted in arrests and disruption of the group’s activities by early 2016.

37. Secure encrypted emails were transmitted between group members in connection with each murder. This case illustrates the degree to which encrypted email and other encrypted messaging systems impair police efforts to enforce the law and protect the community. The four offenders were clearly emboldened to commit the murders for which they are now to be sentenced by their ability to carry on criminal activity as a business, aided by the use of this clandestine communication system.

38. It is necessary to refer to the facts surrounding each of the murders in some detail in order to expose the degree of premeditation, preparation and coordination that was involved on the part of the offenders. I will not repeat throughout these reasons the standard of proof to which I have found matters established. All factual findings tending toward higher culpability, or otherwise toward more severe punishment, have been made according to the criminal standard. I have determined mitigating circumstances in favour of the offenders on the balance of probabilities.

Murder of Michael Davey 30 March 2016

39. Mr Davey was shot in Stafford Street, Kingswood on 30 March 2016 a few minutes after midnight. From January 2016 he had resided with his partner in a townhouse in that street. He was 30 years old and was a member of the Penrith Chapter of the Rebels outlaw motorcycle gang. He was unconnected with Sultani’s group.

40. In either February or March 2016 Sultani arranged through RS 670 to attend a rural property at Mangrove Mountain, approximately 80 km north of Sydney, for the purpose of test firing some guns. On a Sunday within about six weeks before the murder Sultani organised for RS 670 to receive from another member of his group, at Concord, several weapons. These were produced from storage at a safe house. RS 670 drove to Mangrove Mountain with the weapons and met Sultani and Munshizada there. All three went to a secluded part of the property and test-fired three or four handguns and an Austeyr rifle. The weapons included a 9 mm Desert Eagle pistol and a .25 calibre pistol. Sultani took a particular interest in the 9 mm Desert Eagle, which he said was his favourite. In late 2015 RS 670 had obtained a .25 calibre pistol and had supplied it to Sultani. Although RS 670 could not specifically recall that weapon being test fired on this occasion, there is ample evidence from which I am able to infer beyond reasonable doubt that it was a Colt and that it was one of the weapons tested.

41. At the conclusion of the test-firing session the three men gathered up most of the fired cartridge cases from the ground and removed them. RS 670 took the weapons back to the group member who had provided them to him in Sydney. Sultani and Munshizada travelled back separately. Ballistics evidence concerning fired cartridge cases recovered from the property by police in January 2017 establishes that the 9 mm Desert Eagle pistol and the .25 calibre Colt that were test fired were the weapons used to kill Michael Davey on 30 March 2016.

42. Mr Davey was engaged in illegal drug supply from his residence in Stafford Street. He frequently made arrangements for the handover of drugs by exchange of email messages on a BlackBerry mobile phone. He usually met with his customers on the street. About one week before his death he met on Stafford Street with a first time customer to whom he supplied drugs pursuant to an arrangement made on the BlackBerry. At about 10:30 or 11:00 pm Mr Davey placed a one litre San Pellegrino bottle containing a prohibited drug in liquid form on the letterbox of No 17 Stafford Street, across the street from a park. The buyer arrived by car, dressed in the clothing of a construction worker, alighted and collected the bottle. I am satisfied that this buyer was either Sultani or Munshizada or a member of Sultani’s group and that through this transaction Sultani and Munshizada knew, before 29 March 2016, the location where Mr Davey would supply drugs. By 29 March 2016 they also knew the email address of Mr Davey’s BlackBerry and that this was a means by which arrangements could be made for collection of drugs on Stafford Street.

43. By March 2016 Sultani and his group were in possession of two stolen vehicles that are relevant to the manner in which Sultani and Munshizada carried out this murder. One was a white Audi Q5 bearing false plates with the registration number DCI-34L. In January 2016 RS 670 had procured the false plates at the request of Sultani. The second vehicle was a Toyota HiAce van, also fitted with false plates. A third vehicle relevant to the planning and carrying out of this murder was a Mazda van registered in the name of RS 670. Unlike the stolen vehicles, the Mazda van had come to police attention as a result of its use by Sultani’s group. A tracking device had been covertly installed in it. From that device the position of the vehicle at times relevant to the murder of Mr Davey is known. From 23 March until 6 April 2016 a Queensland registered Holden Commodore was hired by one Matthew Muir, an associate of a member of Sultani’s group. The hired Commodore was driven by Munshizada on 29 and 30 March 2016 in connection with the murder, in circumstances related below.

44. After 5:00 pm on 29 March 2016 Sultani and Munshizada were in the unit where they resided at 1 Australia Avenue, Olympic Park together with other group members. At about 5:45 pm Munshizada left with two of the others and they drove in the rented Commodore to Porter Street, Ryde, where the Mazda van was parked. All three men travelled in the Mazda van to the warehouse in Hornsby where Sultani and his associates stored stolen vehicles. Shortly afterwards the Mazda van was driven back to Porter Street, Ryde, closely followed by the stolen Audi Q5 and the stolen Toyota HiAce van. The three vehicles were parked on Porter Street there at about 8:00 pm. I am satisfied beyond reasonable doubt that Munshizada travelled up to Hornsby in the Mazda van, that he drove one of the three vehicles back to Porter Street and that the purpose of these movements was to enable the vehicles to be used in connection with the murder of Michael Davey later that night.

45. At 8:33 pm on 29 March 2016 Mr Davey sent an email from his BlackBerry to a person whom he had arranged to meet with that evening for the supply of drugs. Mr Davey’s email enquired, “How we lookin brother?” The customer responded at 8:36 pm, saying that he was “waiting to knock off from work” and that he would send a message as soon as he was finished. I am satisfied beyond reasonable doubt that the customer was either Sultani or Munshizada or another person who was keeping those two informed of communications with Mr Davey and that the purpose of all this was to lure Mr Davey on to Stafford Street later in the evening, at a time when Sultani and Munshizada would be ready to drive up and shoot him and when there would be few if any pedestrians or other vehicles on the street.

46. Between 8:00 pm and 10:00 pm there were various movements of people to and from Unit 2803 1 Australia Avenue, the detail of which it is not necessary to recount. Sultani and Munshizada were in the unit from 9:00 pm. Danishyar joined them there at about 9:25 pm. At 9:51 pm a message to Mr Davey said, “Hey i’ll be about an hour is that ok bro”. A minute later Mr Davey confirmed that that would be “sweet”. At 10:04 pm Sultani, Munshizada and Danishyar exited the unit, all wearing dark long trousers and high visibility workmen’s clothes. The three men met another of Sultani’s group outside the building and all four of them entered the rented Commodore, parked in an adjacent street. They drove to Porter Street, Ryde, where the stolen white Audi Q5, the stolen Toyota HiAce and the Mazda van were standing. Commencing at about 10:25 pm these three vehicles proceeded in convoy west towards Kingswood, along the M4 Motorway.

47. I infer that Sultani and Munshizada were in the Audi Q5, which was later used in the shooting, and that Danishyar and the fourth group member between them drove the Mazda van and the Toyota HiAce. These latter two vehicles were driven to the Westside Grill at 514 Great Western Highway, St Marys, arriving a few minutes after 11:00 pm. That was a fast food outlet controlled by Sultani. On this night it appears to have been used as a rendezvous point before the murder was carried out. The Audi Q5 turned north off the M4 Motorway at Mamre Road, St Marys, and joined the Great Western Highway close to the Westside Grill but then continued a further 6 kilometres to the west. At about 11:06 pm it was driven along Derby Street, Kingswood only one block from Stafford Street. I am satisfied beyond reasonable doubt that Sultani and Munshizada were in the vehicle at that time, carrying out a reconnaissance of the vicinity in which they would later meet with Mr Davey.

48. At 11:30 pm Mr Davey had not heard from the purported customer who had been emailing him so he exchanged messages to ascertain the expected arrival time. At 11:55 pm he received a message, “Hey I’m here bro in a white Audi same spot opposite the park”. Mr Davey replied that he would be there in two minutes, picked up a 1 litre San Pellegrino bottle containing the prohibited drug “ghb” and went out to the street, telling his partner that he would be back “in a second”.

39. When Mr Davey arrived outside No 17 Stafford Street to meet the customer he was fatally shot, sustaining gunshot wounds from seven 9 mm rounds and two .25 in rounds from the 9 mm Desert Eagle pistol and the .25 calibre pistol that had been test fired by Sultani and Munshizada at Mangrove Mountain within the preceding weeks. The shots were fired at close range. Spent casings were ejected onto the ground within metres of where the body was later found. Several neighbours heard the gunfire very shortly after midnight. One of them made a call to the triple-0 emergency number at 12:02:37 am.

40. Following the shooting the Audi Q5 was driven back to Porter Street, Ryde, a journey of about 30 minutes. The Toyota HiAce was also driven back there but the Mazda van remained at the Westside Grill. Munshizada and Danishyar travelled in either the Audi or the Toyota back to Porter Street. From there they returned to Olympic Park in the rented Commodore, with Munshizada driving. They arrived at 1 Australia Avenue at 1:03 am. Sultani and another group member also arrived back at Porter Street in either the Audi or the Toyota. They were picked up there by an associate driving a utility and arrived at 1 Australia Avenue at about 1:15 am.

41. It is an agreed fact in the sentence proceedings against Sultani that he caused the Audi Q5 to be dumped and burned at Belfield about two weeks after it had been used in the murder of Michael Davey.

42. On 1 September 2016 police executed a search warrant at premises in Ada Street, Concord that were used by Sultani for the storage of firearms. A large number of weapons were located and seized, including a 9 mm Desert Eagle Automatic pistol and a .25 in Colt Automatic pistol, together with significant quantities of 9 mm and .25 in ammunition. The Desert Eagle pistol was in a disassembled state and its barrel was missing. Both weapons had sustained deliberate mechanical damage. In their damaged condition the weapons could not be test fired for the purpose of matching them to casings found at the murder scene. No other weapons in the Ada Street safe house had been similarly damaged. I am satisfied beyond reasonable doubt from the circumstantial evidence that these were the murder weapons and that Sultani fired the 9mm Desert Eagle and Munshizada fired the .25 Colt.

Murder of Mehmet Yilmaz 9 September 2016

53. The following account of the murder of Mehmet Yilmaz is based upon the facts agreed by Sultani, evidence given at his sentence hearing regarding matters that he does not agree but does not dispute and evidence given in the trial of Munshizada. Baines and Danishyar were tried for this murder upon the Crown’s allegation that they were seated in the rear of the vehicle from which fatal gunshots were fired at Mr Yilmaz. It was alleged by the Crown that they were both parties to a joint criminal enterprise with Sultani and that they were present in the vehicle ready and willing to assist. Separate juries acquitted each of Baines and Danishyar. They both fought the charge on the ground that the Crown had not proved that either of them was present. The acquittals are equally consistent with the juries having been not satisfied that the accused were present or not satisfied that the accused had agreed in a joint enterprise to cause harm to Mr Yilmaz.

54. In the facts of Mr Yilmaz’ murder as I find them against Sultani and Munshizada, I include reference to the presence of Baines and Danishyar in the vehicle from which the shooting took place. The evidence and agreed matters that may be relied upon by the Court in sentencing each of Sultani and Munshizada satisfy me beyond reasonable doubt that Baines and Danishyar were present. That has no relevance to sentencing Baines and Danishyar for the only offences for which they are before the Court, concerning the murder of Pasquale Barbaro, and will not be taken into account in that connection.

55. At the time of his murder on 9 September 2016 Mehmet Yilmaz was 29 years old. He was involved in the sale of illegal drugs, specifically methyl amphetamine. By July 2016 he was in conflict with a drug supplier who alleged that Mr Yilmaz owed $20,000. During July the supplier and his associates kidnapped Mr Yilmaz and held him against his will for more than a day. They assaulted, tortured and stabbed him in an endeavour to extort payment. After he was released from this ordeal he found that his motor vehicle had been stolen by one of the perpetrators.

56. Over subsequent months Mr Yilmaz and his brother, Cihangir Yilmaz, attended meetings with the supplier’s uncle who claimed that the debt was now owed to him. The uncle was a member of an outlaw motorcycle gang. The two brothers discussed the disputed drug debt with a friend of Cihangir, Hayan Chandab. He was a member of a different outlaw motorcycle gang, the Comancheros. When meetings with the supplier’s uncle failed to achieve resolution, the brothers informed Hayan Chandab of the situation. They heard nothing further about the matter for several weeks until, on the morning of 9 September 2016, Hayan Chandab arranged for Mr Yilmaz to meet with him that evening at his mother’s house, on the corner of Sydney and Brisbane Streets, St Marys.

57. Mehmet Yilmaz agreed to attend the meeting and arranged to travel with his fiancée, Ms Cigdem Akin, in a Toyota Corolla that she had available. Hayan Chandab and Cihangir Yilmaz exchanged text messages between 6:00 pm and 7:05 pm whereby Chandab was updated on the expected time of Mehmet Yilmaz’ arrival. Cihangir was on good terms with Mehmet and had no idea that the meeting with Chandab was a trap.

58. At about 6:52 pm Mehmet Yilmaz arrived at the address for the meeting. He parked the Corolla outside Chandab’s mother’s house, on the south curb of Brisbane Street. The street runs east-west. Mr Yilmaz parked some 40 m to the east of the roundabout at the intersection with Sydney Street. He left Ms Akin in the car, told her to lock the doors, and went into the Chandab property.

59. At this time RS 888 resided, intermittently, at his mother’s home in Mount Druitt. As a member of Sultani’s organised criminal group RS 888 had carried out tasks such as selling and delivering drugs, collecting payment for drugs, storing and transporting firearms and ammunition. Some days before 9 September 2016 and again on the morning of the 9^th Sultani emailed RS 888 and instructed him to be available at his mother’s house for the day. During the mid to late afternoon, as arranged by Sultani, Danishyar arrived at the Mount Druitt house driving a stolen Toyota HiAce van bearing false plates.

60. At about 3:40 pm Sultani, Munshizada and Baines were in Unit 2803 at 1 Australia Avenue, Olympic Park with two other men. All five of them left the unit at 3:44 pm. Sultani, Munshizada and Baines travelled in Sultani’s Subaru WRX to Baines’ unit building at Wentworth Point where they drove into its carpark. A silver Holden Commodore station wagon that had been stolen between 22 and 23 August 2016 (“the Commodore”) was parked there, fitted with false number plates.

61. Shortly after 4:00 pm the Commodore left Baines’ unit building and travelled west. The occupants were Sultani, Munshizada and Baines. At around 5:00 pm they arrived at RS 888’s Mount Druitt address where Danishyar was already present. All five men then waited at the house, at Sultani’s direction, until a message was received at about 6:54 pm that Mehmet Yilmaz had arrived at the house on Brisbane Street. They all then boarded the Commodore. Munshizada drove, RS888 sat in the front passenger seat and Sultani, Danishyar and Baines sat from left to right across the rear seat. Sultani had in his possession a Tanfoglio 9mm semi-automatic pistol and a .32 in revolver. He brought these weapons to the vehicle, retaining the 9mm for himself and passing the .32 revolver to Danishyar. They drove to Brisbane Street, which was 3.7 km away, about seven minutes’ drive. After some preliminary passes of the Chandab house, Munshizada stopped the Commodore on the south side of Brisbane Street facing west, 30-40 m behind Ms Akin’s vehicle.

62. At about 7:19 pm Mr Yilmaz came out onto the street from the Chandab house. He stood at the driver’s door of the Corolla, waiting for Ms Akin to unlock it. Inside the Commodore Sultani said, “Go, go!” and Munshizada drove forward at speed. He stopped the vehicle in the traffic lane adjacent to Mr Yilmaz. A nearby CCTV camera captured this manoeuvre and the shooting that immediately followed. Sultani, wearing a hooded jacket, raised his upper body half out through the rear passenger-side window of the Commodore with his left arm extended, firing the semi-automatic Tanfoglio pistol at Mr Yilmaz. When the victim attempted to escape around the rear of his vehicle he fell to the ground. Sultani immediately got out of the Commodore, ran to where Mr Yilmaz lay on the ground and fired further rounds at his head and body at close range. The deceased sustained wounds from seven separate gunshots, two of them to the head.

63. The killing of Mehmet Yilmaz was particularly callous. The CCTV footage shows him as little more than a boy, standing in a pair of shorts beside his girlfriend’s car while she sought out the keys to let him in, entirely unsuspecting. The shooting was dangerous and frightening for several people nearby on the street.

64. Sultani ran back to the Commodore. As soon as he was on board Munshizada drove from the scene, returning to the Mount Druitt house within a few minutes. There, Sultani handed to RS 888 the semi-automatic pistol with which Mr Yilmaz had been killed, together with the revolver that had been in the Commodore but had not been used. Sultani instructed RS 888 to cut up the Tanfoglio pistol and dispose of the pieces. RS 888 carried out that instruction over subsequent days and threw the pieces into Lake Macquarie at Gwandalan. One piece that was later recovered by a police diver matched the equivalent part of a complete 9mm Parabellum Tanfoglio TA90 self-loading pistol.

65. The Commodore remained at the Mount Druitt house only briefly after the shooting. Sultani, Munshizada, Baines and Danishyar travelled in the vehicle back to Wentworth Point and entered Baines’ unit building via the car park at 8:00 pm. The Commodore was parked in or near Baines’ building overnight. Shortly before 9:30 pm Sultani, Munshizada, Baines and Danishyar left the carpark of the building in Sultani’s WRX and returned to the Olympic Park unit.

66. Munshizada made arrangements late on the night of the murder for the Commodore to be moved the next day to a basement carpark at the address of another member of Sultani’s group. The vehicle was moved to that location between 11:00 am and 12:00 noon on 10 September and remained there until it was discovered by police and seized on 14 September 2016.

67. Obviously Mr Yilmaz was specifically targeted. Sultani had clearly received advance information that he would be attending the Chandab house during the early evening of 9 September 2016. He must have had that information no later than the morning of 9 September, when he requested RS 888 to make himself available at Mount Druitt throughout the day. The Mount Druitt address served as a convenient nearby staging point for the attack; a place where Sultani and the others could wait until confirmation was received that Mr Yilmaz had arrived. Sultani received precise and prompt notification of Mr Yilmaz’ arrival. I am satisfied that that came from Hayan Chandab, not necessarily directly. Chandab was captured on CCTV at his mother’s house sending a message on a mobile device as soon as Mr Yilmaz arrived.

Murder of Pasquale Barbaro 14 November 2016

68. Pasquale Barbaro was 35 years old when he was murdered on the evening of 14 November 2016. At various times during that day he visited the home of George Alex at 6 Larkhall Avenue, Earlwood. On the last occasion he was there from about 4:00 pm. He parked his Mercedes vehicle directly outside Mr Alex’s house, on the north side of the avenue facing west, against the traffic. It remained there into the evening.

69. Sultani had a personal hostility to Mr Barbaro whom he believed had been in some way responsible for the death of Joe Antoun. Mr Antoun was shot dead in the doorway of his home on 13 December 2013. Sultani had been a close associate of Mr Antoun and had regarded him as a mentor. A few days prior to 14 November 2016 Sultani attended sentence proceedings for a man who had pleaded guilty to having shot Mr Antoun. During those proceedings Sultani openly displayed hostility to that offender. I am satisfied beyond reasonable doubt that for some time before 14 November 2016 Sultani had planned to kill Mr Barbaro and that he was waiting to receive definite information of a time at which he would attend a location where he could be surprised and murdered. The period over which Sultani had this in contemplation was, at the least, several days, long enough to make careful plans and to have his co-offenders briefed and ready.

70. In the late afternoon and early evening of 14 November 2016 Sultani, Munshizada and Danishyar were all present in the Australia Avenue unit. Their activities and to a limited extent their conversation were captured on a surveillance device that had been covertly installed in the unit by police. At about 7:30 pm all of them commenced rapid preparations to leave the unit, including, in Sultani’s case, pulling on a pair of latex gloves. I am satisfied beyond reasonable doubt that at this time Sultani had received information that Mr Barbaro was at Mr Alex’s house on Larkhall Avenue. I am equally satisfied that by this time each of Munshizada, Danishyar and Baines was aware of Sultani’s intention to kill Mr Barbaro and had agreed to assist in the way that unfolded. From 7:30 pm Munshizada and Danishyar were on notice from Sultani that an opportunity had arisen and that they were to move quickly to take advantage of it.

71. Shortly before 7:45 pm cameras outside Unit 2803 and in a lift of that building captured Sultani, Munshizada and Danishyar departing. From the basement carpark they left the building in Sultani’s Subaru WRX, Munshizada driving. They picked up Baines from his unit building at Wentworth Point and all four of them travelled to Ring Street, Belmore. During the trip some of those in the WRX commenced to change into clothing that Sultani had brought with him. Earlier in the day the four offenders had learned that a listening device had been discovered in a Holden Calais motor vehicle used by one of the group. As a result they were vigilant for police electronic surveillance on the evening of 14 November 2016 and said very little to each other at the Australia Avenue unit and in the WRX.

72. A silver Audi Q7 that had been stolen in May 2016 had been parked on Ring Street since at latest 4 November 2016. The vehicle was fitted with false registration plates. Neither the agreed facts in Sultani’s case nor the evidence given at the trials of the other offenders establishes who had stolen the vehicle or arranged the false plates or parked it on Ring Street. However, by 14 November 2016 Sultani knew that the vehicle was there and available for use in his plan to kill Mr Barbaro when the opportunity arose. Ring Street is 5 km Mr Alex’s house on Larkhall Avenue.

73. When the offenders arrived at Ring Street at about 8:15 pm, Sultani, Munshizada and Baines completed their change of clothing, then alighted from the WRX and entered the Audi Q7. Danishyar moved to the driver’s seat of the WRX and drove away in it at about 8:20 pm. He was instructed by Sultani to check messages on his BlackBerry and/or on the Wickr application on a mobile phone in order to keep in touch with the other three and to be ready to pick them up after the murder had been carried out. Over approximately the next one and a half hours, until shortly before 10:00 pm, Danishyar drove the WRX around suburbs to the west and north of Earlwood, within a range of about 8 km from Mr Alex’s house.

74. Munshizada drove the Audi Q7 from Ring Street to Larkhall Avenue arriving at about 8:35 pm. Sultani sat in the front passenger seat and Baines sat in the rear behind the driver. Munshizada made one pass of Mr Barbaro’s parked Mercedes, continued around the block, then drove back into Larkhall Avenue and parked the Q7 on the south side of the street, 50 m or more behind Mr Barbaro’s vehicle and also facing west. They lay in wait there for nearly an hour. Sultani was armed with a 9 mm calibre Beretta semi-automatic pistol. Baines had a .45 in calibre Norinco semi-automatic pistol. While waiting, Munshizada exchanged encrypted email messages with Danishyar, informing him that it was proposed to burn the Audi Q7, at a location to be advised, and that he was then to pick them up in the WRX, to return home.

75. Shortly before 9:34 pm Mr Barbaro came out of Mr Alex’s house, sat in the driver’s seat of his vehicle, started the engine and switched on the headlights. Within seconds Munshizada drove the Audi Q7 at speed along Larkhall Avenue and stopped next to the Mercedes, slightly angled in towards it and with the rear window on the driver’s side precisely aligned with the front passenger window of Mr Barbaro’s car. As the Q7 stopped, Baines fired four shots from his position in the back of the Q7, through Mr Barbaro’s front passenger window. One projectile caused only a relatively superficial wound to Mr Barbaro’s left upper chest, near the shoulder. The other three bullets passed from left to right and from back to front through Mr Barbaro’s torso, causing extensive damage to his heart and lungs. The path of the projectiles indicates that Mr Barbaro had turned to his right when these wounds were sustained. They would have been fatal within no more than a minute. Mr Barbaro had sufficient residual strength to get out of the car and run east down Larkhall Avenue, away from his assailants.

76. As the first shots were fired by Baines and as Mr Barbaro exited his car and tried to escape, Sultani alighted through the front passenger door of the Q7, ran around the front of both the Q7 and the Mercedes and fired one round in the direction of Mr Barbaro as he fled. Sultani then ran after Mr Barbaro and Munshizada reversed the Audi Q7 rapidly, to follow them. Mr Barbaro collapsed on the ground only 25 m to the east of his car. Sultani fired five rounds into the back of the victim’s head and neck as he lay face down on the ground. Two of these gunshots inflicted instantly fatal wounds.

77. Mr Barbaro died at the scene as a result of wounds from 10 separate rounds fired from the two pistols. Neighbours in one of the houses on Larkhall Avenue witnessed the shooting and will put in fear. Passers by came upon the body of Mr Barbaro soon after, before the arrival of police. This was a confronting experience for a number of citizens.

78. In August 2017 police seized an arsenal of 27 firearms located in the boot of a motor vehicle at an industrial unit at Glendenning. The people in possession of these guns had no connection with the offenders so far as appears from the evidence before the Court. Ballistics examination matched a 9 mm calibre Beretta semi-automatic pistol and a .45 in calibre Norinco semi-automatic pistol, both seized at Glendenning, to fired cartridge cases and projectiles found at the murder scene and to projectiles recovered from the deceased’s body at autopsy.

79. After killing Mr Barbaro, Sultani got back into the Audi Q7. Munshizada drove it about 9.4 km to Park Avenue, Concord, on the southern side of Goddard Park. While en route to Park Avenue, one of the two passengers in the Q7, probably Sultani, sent a message to Danishyar that he should drive the WRX to Gipps Street, which runs along the north side of Goddard Park. At this time Sultani sent an encrypted message to two of his associates, H and A, in the following terms:

8:43pm Sultani to A and H   Its done we driving - Pray we arrive safe

From this message it is clear beyond doubt that before the night of 14 November 2016 the impending homicide of Pasquale Barbaro had been intimated to others in Sultani’s group.

80. At about 10:10 pm Munshizada parked the Audi Q7 on Park Avenue and he and Sultani set fire to it, using petrol as an accelerant. Whilst this was occurring Danishyar had the WRX stationary on Gipps Street, about 100 metres away. Baines ran ahead across Goddard Park to verify that Danishyar was there for the pickup. Shortly after 10:10 pm Baines re-entered the WRX, followed within minutes by Sultani and Munshizada.

81. Danishyar then drove the group in the WRX to Slough Avenue, Silverwater, where they met with an unidentified person who drove them away from the location and then returned them to Slough Avenue approximately 13 minutes later. During that interval the WRX remained parked and unattended. I am satisfied beyond reasonable doubt that at this time clothing that had been worn during the shooting was removed and disposed of. At about 10:40 pm, Sultani drove the WRX from Slough Avenue, with Munshizada, Baines and Danishyar as passengers, to Wentworth Point. Baines alighted in the vicinity of his unit building and the other three continued to Olympic Park, arriving at about 10:55 pm. They re-entered Sultani’s and Munshizada’s unit.

Gravity and culpability of Sultani’s commission of the three murders

Sultani’s acts and motive in the murder of Michael Davey

82. The murder of Michael Davey was premeditated by Sultani and involved a high level of planning by him. I am satisfied that his purpose in arranging the practice shoot at Mangrove Mountain within weeks before Michael Davey’s death was to achieve a state of readiness to commit the murder. Sultani was the principal planner of this crime within his group of criminal associates and he directed others regarding preparation and execution. All aspects of preparation integrally involved Sultani.

83. Sultani obtained the Audi Q5, which had been stolen on 10 March 2016. He procured false registration plates for it and for two of the other vehicles that were used in connection with the murder. I infer that he arranged the hire of the Commodore in which he and Munshizada travelled from Olympic Park to Porter Street, Ryde. I infer that Sultani arranged for the preliminary purchase of drugs from Mr Davey during the preceding week as a means of encouraging him out onto Stafford Street on the night he was to be shot.

84. I am satisfied that Sultani used the 9 mm Desert Eagle pistol in the attack, as he had done on the practice shoot during the preceding weeks. One of the seven projectiles fired by Sultani from that weapon entered below the deceased’s chin and caused brain injuries that would have been, alone, fatal. He was shot from a range of within a few meters. This occurred within 100 m of his home, where his partner was waiting for him.

85. It is an inescapable inference that the murder of Mr Davey was carried out for some criminal commercial purpose, not precisely identified in the evidence. Sultani is not shown to have had any personal connection or conflict with the deceased. One possible commercial purpose could have been to earn a fee that would be paid by some other person who was in competition with Mr Davey in the sale of drugs or who had some other reason for wishing him dead. Sultani may have wanted to eliminate a competitor, because his own organised criminal group were extensively involved in the distribution of illegal drugs. The precise criminal benefit is not important.

Sultani’s acts and motive in the murder of Mehmet Yilmaz

86. Sultani was, again, at the centre of planning for the murder of Mr Yilmaz. This was also premeditated and extensively prepared for. Sultani arranged to use RS 888’s mother’s house at Mount Druitt as a staging point for the attack. He procured the false plates for the stolen silver Commodore that was used in the murder. The two weapons that were in the Commodore at the time of the attack, one of which was used by Sultani himself, came from Sultani’s possession. He had the line of communication to be informed when Mr Yilmaz had arrived at Brisbane Street and it was Sultani who, on receipt of that information, told the others to get into the Commodore, to drive to St Marys and take up their position for the ambush. When Mr Yilmaz emerged onto the street Sultani was the person who directed Munshizada, “Go, go!” and it was he alone who fired the lethal shots.

87. The circumstances that a substantial drug debt was claimed from the deceased and that endeavours had been made by others to force payment strongly suggest that the person to whom the debt was owed engaged Sultani for reward to kill Mr Yilmaz as a warning to other drug debtors. The enterprise may have been undertaken in part to enhance the Sultani group’s reputation for ruthlessness, which might benefit their own trade in drugs and firearms. Again the precise nature of the benefit to the group’s criminal activities is not revealed by the agreed facts or other evidence but is not important. It is sufficient for the purposes of sentencing that the Court can be satisfied beyond reasonable doubt that Mr Yilmaz was murdered in the course of and as an adjunct to Sultani’s organised criminal activity. There is no evidence of any personal connection between Mr Yilmaz and Sultani or his associates. The offender had no basis for personal hostility nor any reason to fear the deceased.

Sultani’s acts and motive in the murder of Pasquale Barbaro

88. Sultani’s premeditation, elaborate planning and central control of the murder of Pasquale Barbaro was of a nature similar to those features of his involvement in the murders of Mr Davey and Mr Yilmaz. In this case the planning included arranging to have keys for and use of the stolen Audi Q7; coordinating with Munshizada as driver and Baines as a shooter; and deploying Danishyar to remove the WRX from the locality in which the murder was to take place and to stand by for the getaway from Goddard Park after the Q7 had been set alight. The petrol accelerant used to initiate the fire in the Q7 was transported to Goddard Park in a jerry can, which must have been placed in the vehicle either when the offenders entered it on the night or at some earlier time. The rendezvous with other unidentified persons at Slough Avenue must also have been prearranged. All of these features indicate the degree of thorough organisation and premeditation that was devoted by Sultani to perpetrating this murder and avoiding apprehension.

89. At some time before 11:30am on 22 November 2016 Sultani learned from Tony Antoun, the brother of Joe, that there was a CCTV camera on the building across Larkhall Avenue from where Pasquale Barbaro had been shot and that it had “good Street view”. Tony Antoun had been so informed by the wife of George Alex, whom Mr Barbaro had been visiting. Sultani told each of the offenders that he was concerned he may have been caught on the camera and might be identified. From about 9:00pm that evening, in the Australia Avenue apartment, he re-enacted his actions on the street during the shooting. Baines watched the re-enactment and reassured Sultani that his head had been covered by his “hoodie” and that his face had been obscured.

90. On the evening of 23 November 2016 Sultani and Baines both watched a television program entitled “A Current Affair” that reported on eight murders committed in New South Wales between July 2015 and November 2016, including that of Pasquale Barbaro. Each victim was described in the program as a gangland or organised crime figure. After the broadcast the following email message was sent (emphasis added):

[1]   10:27pm Sultani to Baines

Just seen current affair lol – I don’t care – Just been thinking about hoodie lol – Just curious if they got me or not – If not then I’m sweet – Other than it was done clean – Even with wrx... – The Rebels was clean – the last one mak daddy would have been questioned by now – So leaves us with this dog – If we pull this off bro no one has done it like us – And still walking.

91. "The rebels was clean" was a reference to the murder of Michael Davey. "The last one mak daddy would have been questioned by now" was likely a reference to the murder of Mehmet Yilmaz. The words, "So leaves us with this dog" is a reference to Barbaro.

92. An exchange with Baines ensued, as follows:

[2]   10:46pm Baines to Sultani

Yeah I seen to [sic] brother lol had em all on their [sic] spider everyone haha – You be sweet my brother cause you kept putting your head down they wouldn’t of got a clean shot of you brother.

[3]   10:52pm Sultani to Baines

Yeah thayts [sic] what I’m hoping cause I ran with hoodie on – Cause I had it on while I was in car – And after I ran back I knew I had my head down and hoodie covering it – And we didn’t pass the cameras on way back – Just only time is when I juimped [sic] out to pull chase hahahah – Yeah spiderman lol – Snookered hahaha

[4]   10:54pm Baines to Sultani

Lmaooooo snookered brother he got splattered – Should of [sic] been alright my brother you had head down and face to the floor my bro so they wouldn’t of been able to get a clear shot of you anyway – Fuck I hate how they going on about pasq lol Mafioso kingpin lmaooo he’s a fucking rat.

[5]   10:59pm Sultani to Baines

Hahahahah wooshk got him few in back of head – Broo – While dangerous was looking for his balls to do it – He went quick bro and didn’t suffer lol – I know that pasq was a big rat – Can’t belive [sic] the shit we’ve pulled off and we don’t even get raided lol or questioned – Hopefuly [sic] it stays like that.

[6]   11:18pm Baines to Sultani

I think it will stay that way brother we don’t talk out of school about what we have done – When I go home be extra friendly to sofia and put the dad act on hard lol if they got my house bugged they be thinking we got the wrong man lol – The rise and fall of dange lol he tried and failed with a leg shot haha – Bro the last one was the best I loved the feeling I didn’t hesitate just let loose on him brother.

[7]   11:30pm Sultani to Baines

Love you my brother – Hahahah rise and fall of danger lollllll – It was the best my brother – We’ve got a bond together that know [sic] one would understand

[8]   11:37 Baines to Sultani

Lova ya to [sic] my brother you want maccas?

93. The references to "Spider" or "Spiderman" and to “Danger” or “dange” are not relevant to the present sentence proceedings. The highlighted words in message [5] show Sultani’s relish of the manner in which he killed Pasquale Barbaro. Messages [1], [5] and [7] display the satisfaction he felt from the killings.

94. On 25 November 2016 the Daily Telegraph published an article relating to the murder of Pasquale Barbaro. A copy of that edition of the newspaper was found in the living area of the Australia Avenue apartment when a search warrant was executed after the offenders had been arrested on 29 November 2016. On the day that the article was published the following exchange of encrypted email messages took place between Sultani and Danishyar:

[9]   11:46am Sultani to Danishyar

Hey bro how’s ur day – U read dailytelegraph – Damn we really fucked shit up with this pb lol

[10]   1:07pm Danishyar to Sultani

Yeh I red it bro it is what it is maybe now I change my mind about what I said last night getting knocked lol I reckon jail more likely. It is what is bro we know what we were getting into before we do it whatever you want think and let me know I’m there for anything you need in any way bro

[11]   1:29pm Sultani to Danishyar

Yeah I get you bro – Just got to be careful – He be depressed knowing he mite get life for nothing – Inshallah for us we be okay and we have best lawyers worse case

95. There is no reason to doubt that part of Sultani’s motive for this crime was personal hatred and revenge for what he believed to have been Mr Barbaro’s part in the death of Joe Antoun. No evidence has been tendered, either in the trials relating to this murder or in the sentence proceedings, to substantiate that Mr Barbaro was actually involved in the shooting of Joe Antoun in December 2013.

Aspects of gravity common to all three murders committed by Sultani

96. Each of these homicides was committed in a suburban residential location where citizens in their homes and walking on neighbourhood streets were frightened by gunfire and its aftermath. Such crimes seriously degrade the peace and security of the community. Sultani acted with merciless detachment toward those whom he killed and in disregard of the impact upon partners, family members, friends and the public. He reached agreement with others for their assistance. He approached each murder as a job. The evidently thorough planning reveals premeditation over many days in each case.

97. Sultani told Dr Olav Nielssen, a forensic psychiatrist engaged by him for the purpose of these sentence proceedings, that the murders were anticipatory defensive acts on his part, committed out of fear of being killed first. He made the following claims:

1. With respect to Michael Davey:

[We] were leaving the Rebels … we stood up to them and they put us on show and there were threats exchanged and we heard that other chapters were going to take us out … it was a few boys against a club with 2000 members … I visited a friend in jail he told me to beware of the Penrith chapter … I got an issue with Penrith and I thought I would take the initiative and strike first … he [Mr Davey] was their enforcer”.

2. With respect to Mehmet Yilmaz:

[With] Yilmaz I thought he threatened someone and he is the enemy …

3. With respect to Pasquale Barbaro:

I ran into him in Leichardt … there was a scuffle and we got the better of him … then he was making threats to kill me and chop my head off and drop it at my parents’ house. I waited for the opportunity to get him before he got me.

98. I do not accept any of this in the absence of evidence from the offender, sworn or affirmed and sustained under cross-examination, or evidence from some credible witness. Proffering such large claims through the purported provision of a history to a forensic psychiatrist is contrived and manipulative. On 3 December 2021 the Crown filed and served written submissions, including that the Court should not accept the above assertions about anticipatory self-defence. At the commencement of the sentence hearing on 13 December 2021 Sultani’s counsel sought an adjournment to gather evidence to substantiate the claims his client had made to Dr Nielssen. The offender was present at the sentence hearing by Audio Visual Link and could have been called but he was not. Counsel suggested that an adjournment had become necessary through fault of the Crown, for not having marshalled evidence in rebuttal of what Sultani told his psychiatrist and for not having requested that he be examined by another psychiatrist, who might have tested the assertions. Those submissions are, to say the least, unusual and surprising. Sultani’s pleas of guilty were all entered two years ago. He has had that length of time to prepare whatever evidence he wished to put forward in mitigation. The adjournment application was disruptive, without merit and I refused it.

99. There is no credible evidence of any threat to Sultani or his group from any of the deceased. Nor is there credible evidence that such a threat was perceived by the offender. In paragraph 5 of the Agreed Facts concerning Mr Davey, it is recorded that in about 2015 Sultani’s group, who had constituted the Burwood Chapter of the Rebels, “began acting on their own initiative rather than strictly complying with the rules that applied to members of the Rebels OMCG generally”. The consequences are stated in the facts, in the following terms:

This created a lot of tension with other Rebel members. The Group effectively became a faction within the Rebels organisation, who followed their own rules. Notwithstanding the bad blood that developed, the Group continued to deal in drugs with other Rebel chapters.

100. Whatever may have been the manifestation of this “tension” and “bad blood”, there is no evidence that it extended to or particularly concerned the Penrith Chapter, or Michael Davey as a member of that chapter. There is no evidence that ill will had developed into open physical conflict between members of Sultani’s group and members of any chapter of the Rebels, or even that it had developed into threats. It is an agreed fact that RS 888 has said that he was told by Sultani that he “shot [Michael Davey] because of ongoing conflict between the Penrith Rebels and the Burwood crew and also over a bad drug deal”. I place no reliance upon RS 888’s hearsay of an untested assertion by Sultani.

101. Even if it were established that Sultani felt the threats that he claimed, from any of his three victims, I would not regard that as mitigating the gravity of the stealthy assassinations that he carried out. Counsel submitted that because of the offender’s hatred of Pasquale Barbaro, his murder should be regarded as a “crime of passion”. That terminology is not apposite to such a coldly premeditated execution. I reject the submission.

102. I have referred to Sultani’s motives of commercial criminal gain, in relation to Michael Davey and Mehmet Yilmaz, and his personal hatred of Pasquale Barbaro. In addition it is clear that Sultani acted in the pursuit of a personal satisfaction that he derived from killing. Shooting the defenceless and unsuspecting Mr Davey at close range would have been confronting and shocking to most people, an experience never to be repeated if avoidable. But Sultani willingly carried out the two further executions in the same year, with at least equally meticulous planning and equally callous indifference. He was not under any duress or fear or other imperative to do so. There is no evidence to suggest that he found the measure of expected financial gain an irresistible temptation. Sultani sought little more than to gratify a desire to kill.

103. Only 10 days after the murder of Mehmet Yilmaz, on 19 September 2016, Sultani sent an email to RS888 requesting that he clean up one of the vehicles because “Mite [sic] have another hit on soon”. He apparently felt no revulsion at the manner in which he had executed Mr Yilmaz. He was immediately ready to do it again. Sultani’s enthusiasm for killing is further confirmed by the terms of his email exchange with Baines on 23 November 2016 quoted at [90]-[93] above.

104. In Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 the following principle of sentencing was stated by Mason CJ, Brennan, Dawson and Toohey JJ at 477 (emphasis added):

There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell [1970] AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

178. Counsel also made this submission:

Another aspect of the offender’s background is directly relevant to [his] involvement in the murder of Mr Barbaro: the deeply ingrained value of retaliating by meeting violence with violence which had literally been beaten into him by his father.

This rests on the proposition that Sultani’s reason for killing Pasquale Barbaro was revenge for the perceived involvement of Barbaro in the death of Joe Antoun. Assuming that to be so I decline to draw the inference, as invited by counsel, that Sultani asked Baines “to help him retaliate by meeting murderous violence with murderous violence” and that Baines’ background “explains why he was in the situation of being asked to participate in a murder […] and why he agreed to take part”. These inferences are not self-evident and nothing short of hearing such an explanation from the offender could satisfy the Court of the conclusions suggested.

181. I do not find the offender’s culpability for this appalling premeditated murder reduced by any causative effect from his undoubtedly disadvantaged background.

182. However, I am able to infer on the balance of probabilities that from when Baines fell in with Sultani and Munshizada he was heavily influenced by them, ultimately with sufficient effect to draw him into their perpetration of lethal violence, which was bordering on routine by the time Pasquale Barbaro was killed. The malign seduction of Baines into Sultani’s and Munshizada’s violent way of life is evidenced, in particular, by the content of Baines ingratiating emails to both of them, by his obsequious endeavours, after the shooting in Larkhall Avenue, to reassure Sultani that he would not have been identified and by his congratulatory message to Munshizada, “the machine driver”.

183. All of the communications that are in evidence and the whole picture of the dynamics between the three men support the conclusion that, despite being part of the inner circle around Sultani, Baines was at a rank below Sultani and Munshizada. He was their subordinate, seeking to emulate them in lethal violence. They involved him in their plans to kill a man of Sultani’s choosing, whereas he would have had no occasion or interest to kill anyone on his own initiative. Further, although Baines fired the first shots that were lethal on their own, his involvement was not indispensable to the commission by Sultani and Munshizada of this crime. I have no doubt that it would have occurred with or without him. His culpability in the third of these murders is not as great as that of the other two and does not satisfy the criterion in s 61(1) of the Crimes (Sentencing Procedure) Act.

Subjective considerations

Remorse, prospects of rehabilitation, risk of re-offending

184. Baines continues to deny the offence. He has shown no acceptance of responsibility. Ms Cullen reported that in her consultations with him he demonstrated “a level of contrition toward the victim and his family”. With respect, that is a misuse of the word “contrition”, which cannot exist where wrongdoing is denied. I do not share Ms Cullen’s view that Baines’ prospects of rehabilitation are reasonable. Her conclusion appears to rest, to a significant extent, upon the offender’s stable relationship with Ms Jovic, which has endured since 2013. Their child was born in October 2015 and was 13 months old when Baines took part in the murder of Pasquale Barbaro. What Ms Cullen identifies as “the strong value of fatherhood” provided no restraint upon Baines’ participation in this organised killing. Ms Cullen also sees hope for rehabilitation in Baines’ development of “sound insight into how his childhood has impacted his decisions”. As earlier stated, although the Court has been provided with detail about his childhood, any insight into how that may have “impacted” Baines’ decision to take part in this crime has not been exposed.

185. Baines’ commission of offences of violence in prison during his remand contributes to my lack of confidence in his prospects of rehabilitation. On 25 May 2017 Baines repeatedly punched a fellow prisoner and, when the victim fell to the ground, he stomped on him before a Corrective Services officer intervened. Baines claims that his hostility to the victim arose from some contact between that person and Ms Jovic. After the assault he phoned Ms Jovic from the prison and told her that he “caved his head in”. On 24 August 2017, immediately after he had been charged with the assault of 25 May, Baines repeatedly punched another prisoner in a holding cell and abused him with the words “You fucking Rebel”. The victim bore a tattoo signifying his membership of the Rebels Motorcycle Gang.

186. Ms Cullen made an actuarial assessment of Baines’ tendency to recidivism using the “Level of Service Inventory – Revised”, a tool that is widely accepted amongst psychologists. His scores placed him in the “Low-Moderate Risk/Needs (i.e., approximately 31.1% chance of recidivism)”. Another widely accepted tool, the HCR-20, produced a score that indicated “Low-Moderate risk for (future) violence”. I place no reliance upon these scores, for the following reasons.

187. On 22 April 2016 the Level of Service Inventory – Revised was administered for the purposes of a Pre-Sentence Report in connection with Baines’ pleas of guilty to charges of stalk/intimidate and being armed with intent. At that time the actuarial tool produced the same result, “low/medium risk of reoffending”. Four months later Baines committed, in company, the premeditated murder for which he is now before the Court. At least in relation to this offender, the scores from this tool are not a good predictor. Ms Cullen’s reliance upon them for the purpose of the current sentence proceedings is unsound. The unreliability of the actuarial tool for assessing this offender is further indicated by a Pre-Sentence Report of 30 May 2018 prepared in connection with Baines’ pleas of guilty to the offences of affray, committed in prison in 2017. Again a “low/medium risk of reoffending” was reported, I assume from an updated application of the test, the previous result having been obtained by Community Corrections two years earlier.

188. In the circumstances of this case a bona fide expression of remorse would be an essential starting point for the Court to be persuaded that Baines has realistic prospects of rehabilitation in the foreseeable future. Without a genuine expression of remorse, the Court is left with the evidence of Baines excitement about having killed Mr Barbaro, in the “machine driver” email quoted at [163] above, and the exaltation he expressed to Sultani late on the evening of 23 November 2016 (referred to at [92] (email [6])):

Bro the last one was the best I loved the feeling I didn’t hesitate just let loose on him brother.

189. Five years later, in his sentence proceedings, there is still no evidence that Baines is troubled by reflection or moral misgiving about this crime. He simply continues to deny it. His enthusiastic participation in such an organised murder, in company with three other cold killers who appear to have been his closest associates, reveals him to be a danger to the community for as far ahead as I can foresee. Both general and specific deterrence are called for in his sentence.

Prior criminal record

190. Prior to Baines’ arrest on the present charge, his only offences of violence were of stalking and intimidation and being armed with intent to commit an indictable offence, both offences committed in October 2015. The circumstances were that he accompanied his cousin to the home of the cousin’s employer, apparently to intimidate the employer with respect to a claim by the cousin that he was not being paid “properly”. In June 2016 Baines pleaded guilty. He was placed under a bond for the intimidation and sentenced to an intensive corrections order for the other offence. This aspect of his prior record is consistent with his propensity for violence, that continued to be exhibited in the early part of his remand. The record is not otherwise significant in determining the sentence that must now be passed.

Conditions of incarceration

191. Submissions were made on behalf of Baines concerning more onerous conditions of imprisonment as a result of the spread of the Covid-19 virus and measures taken within the prison system to combat it. In sentencing Baines I take this consideration into account, with the limitation referred to at [158] above.

Special circumstances

192. I have been asked to find special circumstances for the purpose of adjusting the default statutory ratio of the non-parole period to the head sentence. I find no special circumstances. I expressly do not consider it appropriate to make such a finding in order to adjust the ratio of non-parole period for the combination of Baines’ sentences on affray and other charges, as referred to below, with his sentence for murder.

Commencement of Baines’ sentence

193. Since he was taken into custody Baines has been sentenced for an offence of dishonesty committed in November 2014. On 6 November 2017 he was sentenced for that offence to a fixed term of 9 months, commencing from the first day of his remand and expiring on 28 August 2017. It was submitted that this offence “wouldn’t have necessarily called for full-time custody” if the offender was not already in prison on remand. I cannot and do not approach the matter on that basis. In the absence of an appeal I will take the sentence into account as having been properly imposed. The period of Baines’ custody from 29 November 2016 to 28 August 2017 is referrable to that sentence. As the dishonesty offence is entirely unrelated to the murder of Pasquale Barbaro and predated the murder by two years, the sentence that I am to impose should not commence any earlier than 28 August 2017.

194. For offences committed in prison Baines has also been sentenced as follows:

1. For affray committed on 28 May 2017: 18 months with a non-parole period of 11 months, commencing 29 August 2017. The non-parole period expired on 28 July 2018.

2. For affray committed on 24 August 2017: 12 months with a non-parole period of 4 months, commencing 29 July 2018. The non-parole period expired on 28 November 2018.

195. The sentence now to be imposed for murder should not to any extent be backdated to commence within the consecutive non-parole periods for the above offences of affray. The deterrent effect of sentences for violence committed within prisons would be completely lost if such sentences could be served out through the time for which the offender would in any event be incarcerated. This has been stated repeatedly by the Court of Criminal Appeal. There is no consideration of totality that would operate to any different effect. I am to pass sentence for a crime that is unrelated to the affrays that have attracted these other short terms. Baines’ sentence for murder will commence from 29 November 2018.

Parity between Sultani, Munshizada and Baines

196. Taking into account the respective ages of the three offenders who were direct participants in the murder of Pasquale Barbaro, the practical effect of a determinate sentence for Baines will be that he serves very much less time in prison for that offence than the other two. One very significant difference between them is that the culpability of Sultani and Munshizada is significantly greater because this was the last of three similar crimes, forming a routine of premeditated and elaborately planned eliminations. Secondly, this sequence of “hits”, as Sultani referred to them, was formed a pattern established by Sultani and Munshizada independently of Baines. Sultani and Munshizada carried out sequential killings in a way of business and Baines joined in at the end. Thirdly, Sultani and Munshizada influenced Baines to take part in the murder of Pasquale Barbaro, both by their example and by reaching an understanding with him to play out a defined role of shooting from the rear driver side seat. The desire to kill Mr Barbaro did not come from Baines but from Sultani. The tactics came from Sultani and Munshizada and followed the modus operandi of their ambush of Mr Yilmaz. Baines was led in all respects but he was not overborne. His culpability is not as extreme as that of Sultani and Munshizada but still very high. In joining their ghastly activity he transgressed fundamental, instinctive standards and expectations of human society.

Gravity of Danishyar’s accessory offences concerning the Barbaro murder

197. It is inherent in the jury’s verdict that they were satisfied beyond reasonable doubt that Danishyar knew when he accepted the role of getaway driver that Pasquale Barbaro was to be murdered and that his actions would assist in and/or encourage the enterprise. His email to Sultani on 25 November 2016 (quoted at [94], email [10]) is a direct admission that he knew in advance what he would be taking part in. His participation was most important. By driving Sultani’s WRX away from where the other three offenders boarded the Audi Q7, he separated those offenders from Sultani’s vehicle, which otherwise might have linked them to the vicinity of the murder. By driving around the suburbs and standing by until the other three had carried out the murder, Danishyar gave them the assurance of being able to make their escape after destroying the murder vehicle. The Audi Q7 would of course be identified at the scene of the crime but with a getaway driver standing by in the way that Danishyar did the other three offenders could avoid any connection being made between themselves and that vehicle. Without a getaway driver the scheme would not work.

198. Whilst Danishyar’s agreement to assist in this way constituted his offence as an accessory before the fact to murder, his actually driving the three away from Goddard Park was one of the foundations for his conviction as an accessory after the fact. The acts constituting the two offences are so integrally related that, although giving rise to separate convictions and requiring separate sentences to be fixed, the sentences should be wholly concurrent to reflect that everything done by the offender in relation to both counts was part of a single criminal transaction.

Danishyar’s personal history and subjective considerations

199. Danishyar did not give evidence on sentence. His personal background was conveyed through histories that were taken by Dr Allnutt, forensic psychiatrist, and Ms Cullen, forensic psychologist. Some of this history is borne out by independent records; some of it is inherently plausible and can be relied upon; other parts are self-serving and/or inconsistent with other evidence and cannot be given any weight.

200. Danishyar was born in Australia in 1993 to first generation immigrants from Afghanistan. His father was in his mid-20s when he was born and his mother was about 18 years old. Danishyar exhibited poor concentration and disruptive behaviour from an early age and at 13, in 2006, he was diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”). Medication was prescribed but Danishyar discontinued it after about 12 months due to perceived side-effects. The offender’s uncooperative and disruptive behaviour led to constant conflict at home, particularly with his father, and at school. His father’s response to Danishyar’s behaviour was anger, escalating to physical discipline and periodic exclusion from the home, from age 15. The offender was repeatedly suspended from school. His learning progress was extremely poor. He was in constant conflict with his peers and teachers. Despite persistent efforts by the latter, he could not be induced to cooperate and he was expelled from his last school in 2010, at the age of 17 ½ years.

201. Not long after his expulsion Danishyar met Sultani, through Munshizada. Danishyar and Munshizada are cousins. In about 2012 Sultani was working in a labour hire business in the construction industry. He arranged for Danishyar, then aged 19, to work in the business as a payroll clerk. Danishyar held that position for two years until 2014, during which time Sultani commenced to involve him in organised criminal activities. Danishyar told Ms Cullen that Sultani helped him to deal with perceived physical threats from members of the Hells Angels outlaw motorcycle gang. He told the psychologist that he welcomed this protection. I am not able to accept those assertions or place any reliance upon them in the absence of direct, tested evidence from the offender.

202. Danishyar told the psychologist that he had commenced using drugs at age 15 and that in 2015 and 2016 (aged 22-23) he was a heavy user of cocaine, Valium, Xanax and Endone. That is inconsistent with the drug use history he provided to Justice Health at various times, including in September 2019. Evidence has been tendered of phone messages from the days shortly before his arrest in November 2016, indicating that at that time he had used illicit drugs. The evidence is so variable that I cannot make any confident finding as to the extent of the offender’s use of illicit substances at any relevant time and I cannot identify any relationship between drug use and the commission of the offence that would be relevant to determining appropriate sentences.

203. Danishyar informed Ms Cullen that at the age of 16 he had been sexually assaulted while being detained overnight at Cobham Youth Justice Centre. On the basis of his account of this event and his reaction to it Ms Cullen has diagnosed Post Traumatic Stress disorder. Dr Allnutt did not make such a diagnosis and I do not accept it on the balance of probabilities.

Conditions of incarceration

204. Submissions were made on behalf of Danishyar concerning his experience of the conditions of imprisonment under the regime of measures taken to minimise the spread of the Covid-19 virus. In sentencing him, as with Munshizada and Baines, I take this into account, subject to the considerations referred to at [158] above.

Plea offers

205. In early February 2021, before the commencement of Danishyar’s trial for the murder of Pasquale Barbaro, the Crown indicated that it would frame its case in the alternative as one of joint criminal enterprise or accessory before the fact. Up to that point the Crown had not laid a charge of accessory after the fact. On 1 February 2021 an offer was made through Danishyar’s solicitors that “in full satisfaction” he would plead guilty to a charge of accessory after the fact. Pleas of guilty to other offences, unrelated to the Barbaro murder, were also offered. In subsequent correspondence it was stated that if his offer should be accepted Danishyar would agree that his assistance after the fact comprised, first, driving the principal offenders away from Goddard Park, Concord, where the Audi Q7 had been set alight and, secondly, transporting bags from the WRX to another vehicle at Slough Avenue, Silverwater.

206. On 23 February 2021, in open court, I urged the Crown to reconsider the way in which it proposed to open and conduct its case against Danishyar on the sole count that was then on the indictment, namely, murder. I suggested that framing the case in the alternative as one of joint criminal enterprise would be an unnecessary complication and that the facts proposed to be proved by the Crown, coupled with Danishyar’s formal admission that Sultani had committed the principal offence, would constitute a straightforward case of murder as an accessory before the fact as provided for in s 346 of the Crimes Act.

207. On the afternoon of 23 February the Director of Public Prosecutions advised Danishyar’s solicitors that his offer to plead guilty as an accessory after the fact “in full satisfaction” was rejected. On 24 February 2021 Danishyar’s solicitors were notified that the Crown would formulate the murder charge solely as one of accessory before the fact and that it would add to the indictment an ex officio count of accessory after the fact.

208. Danishyar’s plea offer has very limited bearing upon the appropriate sentence for the two offences of which the jury found him guilty. The offer signified a measure of acceptance of responsibility for the lesser aspect of his offending. That acceptance was qualified and diminished by the offer having been conditional upon discharge with respect to murder as an accessory before the fact, of which, as the jury decided, he was guilty. There was no utilitarian benefit from the offer and none that the Crown could have derived but eschewed. The Crown was right to press the charge of murder as accessory before the fact.

Remorse, prospects of rehabilitation, risk of re-offending

209. Danishyar has accepted responsibility for his role as accessory before the fact in the murder of Pasquale Barbaro. I assess him has not having exhibited remorse. He has poor aspects of rehabilitation and is at significant risk of reoffending. Danishyar does not have employment skills that might lead to prosocial engagement upon his release. His oppositional attitudes continue. Whereas they were once directed toward parents and school they are now directed towards law-enforcement. Like Baines, I find that his culpability is somewhat reduced by the influence that he came under, from Sultani and Munshizada, but there is significant risk that upon his release he may make similarly poor choices with respect to associates. Both general deterrence and specific deterrence are important elements in sentencing the offender.

Orders

Abuzar Sultani

210. For each of the murders of Michael Davey at Kingswood on 30 March 2016, Mehmet Yilmaz at St Marys on 9 September 2016 and Pasquale Barbaro at Earlwood on 14 November 2016 Abuzar Sultani is sentenced to imprisonment for life, each such sentence to commence from 29 November 2016.

Siar Munshizada

211. For each of the murders of Michael Davey at Kingswood on 30 March 2016 Mehmet Yilmaz at St Marys on 9 September 2016 and Pasquale Barbaro at Earlwood on 14 November 2016 Siar Munshizada is sentenced to imprisonment for life, each such sentence to commence from 29 November 2016.

Joshua Donald Baines

212. For the murder of Pasquale Barbaro at Earlwood on 14 November 2016 Joshua Donald Baines is sentenced to imprisonment for a non-parole period of 27 years commencing on 29 November 2018 and expiring on 28 November 2045 and a balance of term of 9 years commencing on 29 November 2045 and expiring on 28 November 2054.

213. Joshua Donald Baines will be eligible for release on parole at the expiry of the non-parole period.

214. The offender is notified that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to him apply to him and to the offending which is the subject of the sentence now imposed.

Mirwais Danishyar

215. Mirwais Danishyar is sentenced as follows:

1. In respect of count 1 on the indictment dated 1 March 2021, that he did murder Pasquale Barbaro at Earlwood on 14 November 2016, Mirwais Danishyar is sentenced to imprisonment for a non-parole period of 11 years commencing on 29 November 2016 and expiring on 28 November 2027 and a balance of term of 4 years commencing on 29 November 2027 and expiring on 28 November 2031.

2. Mirwais Danishyar will be eligible for release on parole at the expiry of the non-parole period.

3. In respect of count 2 on the indictment dated 1 March 2021, being that he did assist any one or more of Abuzar Sultani, Joshua Baines and Siar Munshizada, knowing that any one or more of them had committed the murder of Pasquale Barbaro at Earlwood on 14 November 2016, Mirwais Danishyar is sentenced to imprisonment for a fixed term of 2 years commencing on 29 November 2016 and expiring on 28 November 2018.

4. The offender is notified that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to him and to the offending that is the subject of the sentences now imposed.

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Decision last updated: 17 December 2021