R v Tarek Zahed

[2024] NSWSC 231

Supreme Court

New South Wales

Medium Neutral Citation:

R v Tarek Zahed [2024] NSWSC 231

Hearing dates:

1 March 2024

Decision date:

12 March 2024

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) Tarek Zahed, you are convicted of the offence of hindering an investigation of homicide.

(2) You are sentenced to a non-parole period of 2 years 4 months, to commence on 28 August 2022, and expire on 27 December 2024.

(3) That will be followed by a parole period of 1 year 2 months, to expire on 27 February 2026.

Catchwords:

SENTENCING – hindering investigation of homicide – guilty plea – relevant factors on sentence – objectively serious example of the offence – no persons convicted of homicide of deceased – where offender former national sergeant-at-arms of Comancheros – lengthy criminal history – commission of offence on parole serious aggravating feature – no remorse found – prospects of rehabilitation unclear – near fatal injuries inflicted on offender – death of brother in his presence – very significant physical injuries – psychological conditions – extremely restricted conditions of custody – special circumstances found – small reduction of non-parole period – sentence imposed

Category:

Sentence

Parties:

Rex
Tarek Zahed (Offender)

Representation:

Counsel:
K McKay SC with T Lumsden (Crown)
I Hill KC with K Heath and P Lange (Offender)

Solicitors:
Solicitor for Public Prosecutions (Crown)
One Group Legal (Offender)

File Number(s):

2022/255623

REMARKS ON SENTENCE

Introduction

1. On 5 February 2024, Mr Tarek Zahed (the offender) pleaded guilty to a single count in full satisfaction of a previous indictment that had averred the offence of murder. The new count alleged that, between 10 and 21 December 2014, he had arranged for the destruction of evidence constituted by a motor vehicle, with intent to hinder the police investigation of a serious indictable offence, that offence being the unlawful killing of Mr Youssef Assoum (the deceased). That killing had occurred on or about 11 December 2014.

2. The matter was stood over for proceedings on sentence on 1 March 2024, and, after a period of reflection and a short postponement, it falls to me to sentence the offender today.

3. When dealt with on indictment, the offence of hindering a police investigation carries a maximum penalty of imprisonment for seven years. Parliament has prescribed no standard non-parole period. The maximum penalty is an important guidepost in this sentencing process.

4. Aggravating features on sentence, above and beyond the bare elements of the offence, must be proven beyond reasonable doubt by the Crown, unless explicitly agreed. In contrast, mitigating features relied upon by the offender need only be proven on the balance of probabilities. Inevitably, some matters will remain unclear to me, and unable to be established to either standard of proof.

Objective features

5. The objective features of the offending can be shortly stated, based upon some agreed facts that were placed before me.

6. Between about 11:30 PM on 10 December 2014, and a little after midnight later that evening, the deceased was detained, restrained to the ankles and wrists, and bashed within the motor vehicle in question, which he owned. He was also shot in the leg at close range with a firearm.

7. At about 12.10 that morning, staff from a suburban Sydney hospital located the deceased, unconscious in a nearby street. Present also was the brother of the offender, Mr Abdul Zahed. A motor vehicle was seen to depart. The deceased was badly injured, including to his upper right thigh from the gunshot wound, and had no pulse. Tragically, life was pronounced extinct at 12:47 AM. A victim impact statement provided to me speaks eloquently of the suffering that loss has brought to many; my approach to that statement was made clear and agreed to in the proceedings on sentence.

8. Police attended, spoke to the brother of the offender, and charged him with a relatively minor public justice offence.

9. One day later, on 12 December 2014, the offender and a person to be known as Male A attended the home of a relative of the offender. They took possession of the vehicle in question, and drove it to the home of male A. Much blood had been spilt on various parts of the interior of the car. The offender told the other man to clean it, and both of them did so. The offender also told the other man to dispose permanently of the car, through a friend who operated a wrecking yard. His motivation for taking these steps was a desire to protect his brother, an emotion that was perhaps understandable but hardly to be praised, and one that calls for a measure of general deterrence in any event.

10. Male A attempted to arrange that, but the instructions of the offender were botched. The alternative adopted was that Male A paid a significant sum of money to a co-offender, Mr Triantafilos Vlangos, to dispose of the vehicle by way of an explosion. Several days later, Mr Vlangos drove the vehicle to another suburb, where he tried and failed to destroy it by fire with an accelerant. In fact, the fire was able to be put out, the vehicle was identified as having belonged to the deceased, and police were able to examine it. Having said that, that examination was surely rendered less effective because of what had twice been done to the vehicle.

11. In the event, the person or persons who committed the homicide of the deceased have never been brought to justice. It is impossible to say that “but for” the actions undertaken and directed by the offender that the killer or killers would have been detected, convicted, and punished. Even so, as I have said, the actions and orders of the offender surely played some role in making the police investigation more difficult; so much is conceded by his plea of guilty in any event.

Objective seriousness

12. Certainly, the maximum penalty created by Parliament for this offence is shorter than that of many other offences. And one must bear steadily in mind that even the maximum penalty of seven years must be reserved for the worst class of case. Relatedly, one must also be careful not to sentence the offender for any offence that is more serious than the one placed before me.

13. Even so, I think that this is an objectively serious example of the offence, for the following reasons. The offence the investigation of which has been hindered is homicide, which is of itself of great gravity, even in its lesser form. The maximum penalty of that lesser form of the offence is imprisonment for 25 years, which places it very close to the top of the spectrum of serious indictable offences that can be the object of hindering an investigation. As I have said, the killer or killers, as a matter of objective fact, have not been brought to justice. Finally, it is obvious from the thumbnail sketch that I have provided of the agreed facts that the offender played a leading role in, and was an organising mind in, the hindering of the investigation.

Subjective matters

Agreed arithmetical discount

14. Turning now to subjective matters, the parties took time after the proceedings on sentence to reflect upon what, if any, statutory percentage discount should be applied for the utilitarian value of the plea of guilty. The agreed written submission was that such a discount should be 5%. I accept that joint position, and have applied it.

Remorse?

15. Relatedly, the plea of guilty constitutes, in my opinion, evidence of a readiness on the part of the offender to assist the administration of justice by resolving the matter, and an acceptance of responsibility. But I do not go further and find that it evidences remorse, not only because I have heard nothing from the offender in person, but also because there is not a word from the offender to that effect in a detailed report of a psychologist placed before me.

Cautious approach; life of offender

16. Speaking more generally about subjective matters, I have approached them with significant caution. That is not only because, as I have said, I have heard no oral evidence from the offender, or anyone else connected to him. It is also because, in the relatively recent past, the offender has been convicted of public justice offences, whereby he sought to deceive a court. Even allowing for that caution, however, I am satisfied on balance of the following.

17. The offender was born in mid-1980, and is therefore in his early 40s. At the time of the offence under discussion, he was 34 years of age. There is no suggestion that his upbringing as a child was anything other than a happy one. Even so, he experienced learning and behavioural difficulties at school, and was placed in special education classes. Those difficulties culminated in him being expelled in year 7. I accept that, then and now, he operates at a reasonably low level intellectually; having said that, based upon later events in his life, I also think that he is a person capable of considerable forethought and cunning.

18. From the age of 13 years, the offender quickly slipped into the abuse of cannabis, alcohol, and ecstasy, although his position is that, later in life, he brought his substance abuse under control.

19. The offender has enjoyed two close romantic relationships. The first commenced in 2007, though subsequently ended. One child, a daughter now aged 16 years, was born to that relationship. In 2015, the offender learned that he had another child; a daughter he had fathered at 14 years of age.

20. The offender also began his relationship with his current wife in 2015. They were married in an Islamic ceremony and have two children together, eight and six years of age. In 2021, the family moved to Melbourne. Since the offender’s arrest in 2022, his wife has been raising the children as a single parent, away from their family support in Sydney. I accept that she has been struggling to cope, and has since been diagnosed with chronically high-level anxiety and low-grade depression. The eldest child is also said to be suffering from severe separation anxiety, as a result of his father’s incarceration. I accept that as well.

Criminal record and role within the Comancheros

21. Returning to the early life of the offender, he commenced at that time to intersect with the criminal justice system, by way of driving and property offences. By the time he was 15 in 1995, he was interacting violently with police, and was the subject of a short control order. At the age of 20, he was convicted of two counts of maliciously causing a dog to inflict actual bodily harm, and sentenced to periodic detention. The offender breached that order, and was imprisoned full-time.

22. A few years later, in early 2004, he was convicted of maliciously inflicting grievous bodily harm, and recieved a head sentence of 5 years with a non-parole period of 3 years. A few years after that, in 2009, he discharged a firearm with intent to cause grievous bodily harm. The agreed facts of that matter were placed before me; it suffices to say that, in an act of organised violence, the victim was shot at close range by the offender, four projectiles being discharged and two finding their mark, including one penetrating the right ear of the victim. As part of the same incident, the offender had encouraged a reckless wounding with words of great brutality.

23. When this offence of hindering an investigation was committed, the offender was on parole for that shooting, he having been released as recently as October 2014, two months beforehand. That constitutes an obviously serious aggravating feature that requires reflection in my sentence.

24. Later, on a number of occasions over a period of some years between 2017 and 2020, as I have said the offender committed a number of public justice offences, including by way of attempting to mislead a criminal court. He also committed an offence to do with the proceeds of crime. The result of all that was a short period of imprisonment, along with a Community Corrections Order (CCO).

25. In short, the offender must be approached as a person who has intersected with the criminal justice system for a lengthy period, in various ways, often seriously, and in particular by way of grave violence. To adopt the words of his senior counsel, his record is “serious and bad”. Obviously, all of that disentitles him to leniency in this matter, and plays a role in my reflection on his prospects of rehabilitation.

26. Another important aspect of the life of the offender is as follows.

27. Whilst on parole for the shooting offence, he became a member of a well-known motorcycle gang, and quickly rose through its ranks to become its national sergeant-at-arms. That is clearly a position of authority, and not one that a thoughtless, guileless person could attain. It also surely carries with it a threat, at the least, of the use of force in the enforcement of the rules of that group. Again, I regard that role of the offender in the past as a negative one, in a number of ways.

28. Two significant mitigating features are, however, as follows.

Fatal shooting of brother, near fatal shooting of offender, and its consequences

29. A few months before the commission of [as said; in fact, “his arrest for”] the offence under discussion, the offender and another brother of his were ambushed and repeatedly shot. The brother of the offender died in front of him. The offender himself was shot 10 times, and very nearly died. He survived, but suffered very grave injuries with significant consequences, not least the complete loss of an eye, ongoing skeletal, muscular, and organ difficulties, and, I accept, very substantial ongoing pain. He also, I accept, developed PTSD as a result of that experience, and furthermore is very anxious psychologically about the future course of his multiple physical injuries. His subsequent forceful arrest for this matter – of which I make no criticism – did nothing to aid his physical or psychological recovery.

30. That constellation of serious conditions, requiring care into the future, would present a challenge to a team of very well-resourced specialists working in the community. It is no criticism of the Department of Corrective Services to say that, because of the gravity of those injuries, their physical and psychological nature, their variety, and their interactions, holistic care of the offender in custody has been difficult indeed.

Conditions of custody

31. The second significant mitigating feature is as follows. The offender has been kept, for the entirety of the time since his arrest on 28 August 2022, in extremely high security at a well-known correctional centre in Goulburn. Senior counsel described it by the shorthand of “solitary confinement”. Again, I make no criticism of that. But I accept that that state of affairs has made his incarceration very challenging for him. And the stringency of his incarceration has had a cumulative effect, when combined with his medical and psychological issues.

32. In short, the combination of differing factors has made this latest period in prison very difficult indeed for the offender. It must sound in mitigation as a result.

Prospects of rehabilitation?

33. As for the future, senior counsel submitted that the offender has had many many months of isolation in which to contemplate all that has happened, and to reflect upon how he should behave when released. The submission was that I could have some confidence that Mr Tarek Zahed will put his previous life behind him, and start afresh, free of violence, other criminality, and free of any thoughts of revenge for what was done to his late brother and himself. I agree that that positive outcome is one possibility. But other, much more negative, futures can be brought to mind as possibilities as well. My ultimate thought about this topic is that one can certainly hope for change, but one cannot be satisfied on balance that it will occur.

Parity, broadly defined

34. Separately, because I accept that he can be broadly thought of as a co-offender, I have reflected on the sentence imposed upon Mr Vlangos, the gentleman who tried to dispose of the vehicle. I have done so to ensure that the offender cannot have an objectively justifiable sense of grievance when he compares the sentence that I shall impose with the sentence imposed on Mr Vlangos.

35. He pleaded guilty to one charge of attempting to intentionally destroy property by fire, an offence that carries a maximum penalty of imprisonment for 10 years on indictment, and a jurisdictional limit of imprisonment for two years when dealt with in the Local Court, as it was in this case. He was sentenced for his failed effort to destroy the vehicle by fire, using an accelerant. During the investigation of that offence, he lied to the police, and denied any involvement in the matter. He was ultimately sentenced to a CCO of 18 months, which is set to expire in June 2025.

36. There are a number of important points of distinction between the two men, as follows. Mr Vlangos possessed a criminal record of some length, but certainly not as serious as that of the offender. He was not said by either party to have been subject to conditional liberty when he offended. Thirdly, he was the factotum, and this offender was the organising mind. Finally, the two matters were dealt with in different jurisdictions, to my mind quite appropriately. For those reasons, although I have borne in mind the sentence of that other offender, and I accept that some points of distinction argue the other way, I feel comfortable in imposing a somewhat more severe sentence on this offender.

Various matters

37. I turn to discuss a number of short aspects of my approach to sentencing.

38. First, it was agreed that the offender is entitled to a full backdate to 28 August 2022.

39. Secondly, I do not propose mechanistically to list all of the aggravating and mitigating features that I have taken into account; these remarks refer to all of them, albeit sometimes briefly.

40. Thirdly, I have reflected on the comparative sentences to which I was helpfully referred, but because each case turns on its own facts I shall not detail them now.

41. Fourthly, in my calculations of aspects of the sentence to be imposed, I have sometimes rounded down, because the law does not concern itself with trifles.

42. Fifthly, I have accepted the submission of senior counsel that special circumstances exist here, and I have shortened the non-parole period in an effort to maximise the chances of the offender being rehabilitated. But that shortening is very modest indeed, because the non-parole period that I shall impose in a moment is the least that can reflect the objective gravity of this matter. And whether the offender will in fact be released on that date is a matter for others.

Conclusion

43. In short, I have no doubt that the threshold for the imposition of full-time imprisonment has been crossed; I did not understand senior counsel to submit to the contrary.

44. On the one hand, a serious example of an offence against public justice has been committed, serious not least because the object of it was homicide. It was committed on parole by a person who has set his face against the criminal law for many years, including by way of acts of violence of great gravity. One can have no affirmative satisfaction about positive change on his part in the future.

45. On the other hand, that person has accepted his responsibility for what he has done, is physically debilitated, psychologically damaged, and has endured very constrained conditions of custody. My sentence seeks to reflect those many countervailing factors.

Orders

1. Tarek Zahed, you are convicted of the offence of hindering an investigation of homicide.

2. You are sentenced to a non-parole period of 2 years 4 months, to commence on 28 August 2022, and expire on 27 December 2024.

3. That will be followed by a parole period of 1 year 2 months, to expire on 27 February 2026.

4. To express my sentence in another way: I have adopted a starting point head sentence of 3 years 9 months, discounted to 3 years 6 months, and reduced the resultant non-parole period from 2 years 7 months to 2 years 4 months.

1. The first date upon which the offender will be eligible for possible release to parole is 27 December 2024.

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Decision last updated: 12 March 2024