Regina v Darwiche

[2006] NSWSC 1167

CITATION:	Regina v Darwiche & Ors [2006] NSWSC 1167
HEARING DATE(S):	3/4/06, 10/4/06, 11/4/06, 12/4/06, 13/4/06, 18/4/06, 19/4/06, 20/4/06, 21/4/06, 24/4/06, 26/4/06, 27/4/06, 28/4/06, 1/5/06, 2/5/06, 3/5/06, 4/5/06, 5/5/06, 8/5/06, 9/5/06, 10/5/06, 11/5/0612/5/06, 15/5/06, 16/5/06, 19/6/06, 20/6/06, 21/6/06, 22/6/06, 26/6/06, 27/6/06, 28/6/06, 29/6/06, 30/6/06, 3/7/06, 4/7/06, 5/7/06, 6/7/06, 7/7/06, 10/7/06, 11/7/06, 12/7/06, 13/7/06, 14/7/06, 17/7/06, 18/7/06, 19/7/06, 20/7/06, 24/7/06, 25/7/06, 26/7/06, 27/7/06, 28/7/06, 31/7/06, 1/8/06, 2/8/06, 3/8/06, 4/8/06, 7/8/06, 8/8/06, 9/8/06,22/9/06, 27/10/06
JUDGMENT DATE :	10 November 2006
JUDGMENT OF:	Bell J at 1
DECISION:	Adnan Darwiche - for the offence of discharging a loaded firearm with intent to do grievous bodily harm to Bilal Razzak sentenced to a fixed term of imprisonment for eight years to date from 28 November 2003. That sentence will expire on 27 November 2011. Decline to set a non-parole period; For the attempted murder of Farouk Razzak, sentenced to a non-parole period of 14 years and a balance of term of four years. That sentence will commence on 28 November 2005. The non-parole period will expire on 27 November 2019. Specify a balance of term of four years to commence on 28 November 2019 and to expire on 27 November 2023; For the murder of Ziad Razzak sentenced to imprisonment for life. That sentence will date from today; For the murder of Mervat (Melissa) Nemra sentenced to imprisonment for life. That sentence will date from today; Naseam El Zeyat for the murder of Ziad Razzak sentenced to imprisonment for life to date from 26 May 2004; Naseam El Zeyat for the murder of Melissa Nemra sentenced to imprisonment for life to date from 26 May 2004; Naseam El Zeyat for the murder of Ahmed Fadha sentenced to imprisonment for life to date from 26 May 2004; Ramzi Aouad for the murder of Ziad Razzak sentenced to imprisonment for life to date from 26 May 2004; Ramzi Aouad for the murder of Melissa Nemra sentenced to imprisonment for life to date from 26 May 2004; Ramzi Aouad for the murder of Ahmed Fadha sentenced to imprisonment for life to date from 26 May 2004; Abass Osman for the murder of Ziad Razzak sentenced to a non-parole period of 22 years. That sentence will commence on 11 October 2006 and expire on 10 October 2028. Specify a balance of term of five years to date from 11 October 2028 and to expire on 10 October 2033; For the murder of Melissa Nemra sentenced to a non-parole period of 22 years to commence on 11 October 2009. The non-parole period will expire on 10 October 2031. Specify a balance of term of five years to date from 11 October 2031 and to expire on 10 October 2036.
CATCHWORDS:	Sentence
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Harris [2000] NSWCCA 469 R v Kanaan [2005] NSWCCA 385 R v Previtera (1997) 94 A Crim R 76 R v Rose [1999] NSWCCA 327
PARTIES:	Regina Adnan Darwiche (Accused) Naseam El-Zeyat (Accused) Ramzi Aouad (Accused) Abass Osman (Accused)
FILE NUMBER(S):	SC 2005/992; 2005/1252; 2005/993; 2005/997; 2005/1366
COUNSEL:	LLoyd Babb / John Pickering (Crown) John Doris (Adnan Darwiche) Gregory Stanton (El-Zeyat) Glen Whitehead (Aouad) Linda McSpedden (Osman)
SOLICITORS:	S Kavanagh (Crown) Yazbek Lawyers (Adnan Darwiche) Theo Voros (El-Zeyat) Baird & Associates (Aouad) Michael Croke (Osman)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 10 November 2006

2005/992
2005/1252 Regina v Adnan DARWICHE
2005/993 Regina v Nasaem EL-ZEYAT
2005/997 Regina v Ramzi AOUAD
2005/1366 Regina v Abass OSMAN

JUDGMENT

1 BELL J: On 9 August 2006 Adnan Darwiche was convicted following trial of four offences: (i) maliciously discharging a loaded firearm with intent to do grievous bodily harm to Bilal Razzak on 17 June 2001; (ii) shooting at Farouk (Frank) Razzak with intent to murder on 27 August 2003; (iii) the murder of Ziad Razzak at Greenacre on 14 October 2003; and (iv) the murder of Mervat (Melissa) Nemra at Greenacre on 14 October 2003. Naseam El-Zeyat, Ramzi Aouad and Abass Osman were also convicted by the jury of the murders of Ziad Razzak and Melissa Nemra.

2 Naseam El Zeyat and Ramzi Aouad were convicted at an earlier trial of the murder of Ahmed Fahda. The sentence hearing was stood over until the conclusion of the second trial.

3 Each of the offences for which Adnan Darwiche is to be sentenced has its genesis in a dispute between him and the younger generation of the Razzak family. In late 2000 and early 2001 Adnan Darwiche was involved in the supply of cannabis in South Western Sydney. His right-hand man was an associate named Khaled Taleb. Their competition included Bilal Razzak and his cousins, Gehad and Ziad. In February 2001 there was a confrontation between Adnan Darwiche and Khaled Taleb and Bilal Razzak outside Nemra’s Café in Bankstown. Taleb and Darwiche assaulted Bilal Razzak. The incident does not give rise to any charge against Adnan Darwiche and it is irrelevant save that it appears to have marked the commencement of the hostile relations between the two families, which culminated in the commission of each of the offences. After the confrontation there was some further trouble between Bilal Razzak and the younger generation of the Darwiche family. Following one such episode, on the evening of 25 February 2001, a number of shots were fired into Adnan Darwiche’s car, which was parked outside the Darwiche family home in Lilac Street, Punchbowl.

4 Adnan Darwiche viewed the firing of shots at his car, outside his family home, as a serious affront to his standing within the criminal milieu in the Punchbowl – Lakemba area. He believed that Bilal Razzak was responsible for it. Later that night he went with Khaled Taleb and two other associates to a block of units located in Sir Joseph Banks Street, Bankstown, where Bilal Razzak was believed to be living. The driver waited in the car and Darwiche, Taleb and the third man each fired shots at the unit.

5 A few days later there was a meeting attended by members of the Darwiche and Razzak families in an endeavour to settle the dispute between them. During the meeting Adnan Darwiche threatened Bilal Razzak, demanding that he leave the country. A matter of days later Bilal Razzak flew to Lebanon where he remained until early May 2001.

6 The first offence of which Adnan Darwiche was convicted occurred a few weeks after Bilal Razzak’s return to Australia. On the evening of 17 June Adnan Darwiche and another man entered the Razzak family unit in the block in Sir Joseph Banks Street, Bankstown. Both men were wearing full-face balaclavas, they were dressed in dark clothing and each had a Glock-style pistol in his hand. Bilal was in his bedroom, listening to music with his cousin, Samear. Adnan Darwiche opened the bedroom door, pointed his pistol at Bilal Razzak and fired it five times. At least three bullets struck Bilal Razzak; one entered his right flank and passed through his liver, vertebral column, left kidney and part of the colon, exiting on the left side of his body. There were entry and exit wounds to his right and the left knees. For a time following the assault he was paralysed. He has since recovered the use of his legs.

7 Adnan Darwiche was charged with shooting at Bilal Razzak with intent to murder him and in the alternative with discharging a loaded firearm with intent to do grievous harm. He was acquitted of the more serious count. The verdict is readily explained. The discharge of the firearm took place in a confined area in circumstances in which Bilal Razzak was helpless and without any means of escape. There was no obstacle to Adnan Darwiche delivering a coup de gras had that been his intention. As the jury found, it was not. His intention was to kneecap Bilal Razzak and thereby to establish his superiority over him.

8 In the period following the shooting there were further attempts to broker peace between the two families. These were rapidly brought to a head following the release of Gehad Razzak from prison. Gehad was an influential member of the younger generation of the Razzak family. Shortly after his release he met Adnan Darwiche and in the course of the meeting Darwiche agreed to pay a cash sum to Bilal Razzak as compensation for having shot him. The money, a sum of the order of $10,000 or $15,000, was paid to Gehad Razzak on Bilal’s behalf and for a period there was peace between the two families.

9 Around the time the peace agreement was reached Adnan Darwiche abandoned his drug supply business. He was much affected by the death of his father, Farouk Darwiche, and troubled that his father had died without attending the Hajj. Adnan Darwiche became interested in religion, attending the Hajj in 2002 and 2003. Khaled Taleb accompanied him on the first occasion.

10 Adnan Darwiche was overseas in July 2003 when an incident occurred which re-ignited the hostility between him and members of the Razzak family. On 30 July Khaled Taleb was shot by two masked men as he was speaking with a friend in the Halal Butcher’s Shop, Bankstown. He sustained gunshot wounds to each of his legs. The injury to his left foot was particularly severe. He was taken to Liverpool Hospital where he underwent surgery the following day. He remained in hospital for some time. Taleb had a strong belief that his assailants were Gehad and Ziad Razzak.

11 While he was in hospital Taleb spoke with Adnan Darwiche by telephone and told him what had happened. Darwiche returned to Australia shortly after this and visited Taleb in hospital. In the course of his meetings with Taleb in hospital, and at Taleb’s family home following his discharge, Adnan Darwiche made clear that it was his intention to avenge his shooting.

12 I am satisfied beyond reasonable doubt that, regardless of what may have prompted the shooting of Taleb, it was viewed by Adnan Darwiche as a breach of his agreement with the Razzak family. Taleb was known to be his lieutenant and the shooting was an affront to his authority.

13 In August 2003 Frank Razzak’s son, Samear, was living at 106 Yanderra Street, Condell Park (the Razzak premises). Adnan Darwiche believed that Ziad Razzak was also residing at this address.

14 On the evening of 27 August, Adnan Darwiche took up a position on the nature strip near the corner of Fourth Avenue and Yanderra Street from where he had a view of the front verandah of the Razzak premises. He was with a companion. Both were armed with SKS semi-automatic rifles. A third man had been assigned the task of drawing the occupants of the premises outside so that they would be easy targets. In accordance with Adnan Darwiche’s instructions this associate drove along Yanderra Street and pulled up outside the Razzak premises. He fired 11 rounds from a handgun into a white Mazda that was parked outside the premises. The lure worked, just as it had been planned. Frank Razzak came out onto the lighted front verandah. He saw Adnan Darwiche and his companion. He started to call out to them and, as he did so, they both opened fire. In all, 55 rounds were fired in the direction of the verandah of the Razzak premises; 28 from one SKS and 27 from the other. Frank Razzak was not hit. Bullets passed through the aluminium-clad walls of the front bedrooms. Frank Razzak’s teenage daughter, Jomana, who is disabled and cannot walk without assistance, was in one of these rooms. She crouched helplessly on the floor as bullets coursed through the room.

15 Neither Adnan Darwiche nor his fellow gunman possessed any skill in the use of these high-powered weapons. The gunfire, although directed at the verandah of the Razzak premises, was poorly controlled and a number of bullets strayed well to the east of the premises. Two bullets travelled through the western wall of No. 100, across the master bedroom, exiting and travelling through the bedroom of No 98 where they came to rest. Another bullet travelled as far as No. 96 passing through an upstairs bedroom. It is remarkable that no person was injured as the result of this display of uncontrolled gun violence.

16 Adnan Darwiche’s dispute was not with Frank Razzak who was a contemporary of Farouk Darwiche and who was not involved in criminal activity. However, by the time Darwiche came to carry out the shooting in Yanderra Street his intention was to kill any member of the Razzak family. After the shooting Khaled Taleb asked him, “Why did you shoot [Frank], he had nothing to do with this?”, Adnan Darwiche responded, “Fuck them. Fuck all of them”.

17 In the aftermath of the Yanderra Street shooting there were further hostilities between Adnan Darwiche and his associates and the younger members of the Razzak family. It is not necessary to detail them. It is sufficient to note that following the shooting, Ziad and Gehad Razzak went into hiding. They asked if they could stay with a friend named Ali Hamka. Ali was living with his partner, Melissa Nemra, at 5 Lawford Street, Greenacre. He agreed to let the Razzak brothers stay with him. Melissa moved out of the house because she and Ali had fears for her safety. Their two children, Mohamed who was aged 4 years, and Macy who was aged 2 years, were staying with Melissa’s parents. Melissa visited Ali once a week on her day off to clean the house. On the evening of 13 October Melissa decided to stay at the house at 5 Lawford Street.

18 Adnan Darwiche came to learn that Ziad and Gehad Razzak had been staying at 5 Lawford Street, Greenacre. He decided to launch an attack on the premises with a view to killing them. The scheme involved a considerable degree of planning. A car had to be stolen and secreted prior to the attack so that it could be used to transport the gunmen to and from the scene. Adnan Darwiche and his associates had access to a unit in Punchbowl, at which a number of weapons including a rocket launcher were stored. On 13 October Adnan Darwiche, Ramzi Aouad, Khaled Taleb and a man named Mohammed met at the unit. They inspected the cache of firearms and ammunition. They put on gloves that had been acquired for the purpose and commenced to clean each round of ammunition with gun oil. Adnan Darwiche warned them to be careful not to let any hair fall onto the bullets because of the risk of later DNA identification. Each round was wiped clean and loaded into magazines. The magazines were then fitted to the guns: the two SKS rifles that had been used in the Yanderra Street shooting; a 9 mm Glock pistol and a .45 Mach 10 pistol. They cleaned the guns to make sure that they would not jam.

19 The rocket launcher was inspected and there was some discussion about the need to handle it with care. On the evening of 13 October each of these weapons and the rocket launcher were taken from the unit to Naseam El Zeyat’s home in David Street, Greenacre in readiness for the attack. By early evening the stolen vehicle, a Nissan Pulsar had been driven to the El-Zeyat home and was parked in the garage.

20 During the course of the evening Adnan Darwiche, Khaled Taleb, Naseam El Zeyat, Ramzi Aouad and Abass Osman were all present in the dining room of the El-Zeyat premises with the weapons on display when discussion took place about how the attack was to be staged. Adnan Darwiche led the discussion, explaining the role that each man was to play. Abass Osman was to be the driver. Darwiche, Aouad and Mohammed were to be the shooters. Darwiche had earlier designated Taleb as the driver but he decided against this, since in the event they got into any difficulties, Taleb would be a liability because he was still on crutches. Naseam El-Zeyat insisted that he wanted to be a shooter too. Darwiche consented to him joining the party. The instructions given by Darwiche included the position that each gunman was to take up outside the house and that each was to commence firing at the top of his section of the front wall lowering his aim in an “S” shaped pattern down to the bottom of the wall. In this way Darwiche covered the contingency that the occupants of the house might drop to the floor when the shooting began.

21 At a little after 3.00am Abass Osman dropped Adnan Darwiche, Naseam El-Zeyat, Ramzi Aouad and Mohammed off near Lawford Street. Each was armed. Melissa Nemra was asleep in the front bedroom. Ziad Razzak was lying on the lounge in the adjacent front room watching television and Ali Hamka was sitting in a chair next to him. The four gunmen stood outside the house, which is located in a quiet cul-de-sac, and opened fire, discharging 100 rounds between them. Of these 55 penetrated the front wall of the premises, which was of fibro construction.

22 A bullet passed through Melissa Nemra’s neck, fatally wounding her. She died within minutes as Ali Hamka held her. He frantically tried to get assistance by telephoning the emergency services operator. He could hear Ziad Razzak coughing. Ziad Razzak had been struck by more than one bullet. One penetrated the back of his skull. He was removed from the scene by ambulance and he died a matter of hours later in hospital. Ali Hamka survived uninjured.

23 The stolen Nissan Pulsar was set alight in Pandora Street, Greenacre and located by the police within two hours of the shooting.

24 The Court received a victim impact statement signed by Waida Nemra, the mother of Melissa. Melissa was 22 years old at the time of her death. She was a bright student at school and had achieved good results. She had a belief in the value of education. She had set herself goals and in furtherance of these she had commenced a course in engineering drafting. Mrs Nemra expresses her anguish that her daughter should have been gunned down in what should have been the safety of her own home. She writes of the pain she feels daily when Mohammed and Macy who are now aged seven and five call her “Mum”. Melissa came from a loving and extended family who have been very greatly affected by her death. The Court extends its sympathy to all of the members of Melissa Nemra’s family.

25 I am conscious of the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 87-88 with respect to the approach to be taken to the reception of victim impact statement in cases involving unlawful homicide. It is the approach that I adopt in relation to the sentencing of each of the offenders.

26 Adnan Darwiche is aged 30 years. He was 26 at the time of the shooting of Bilal Razzak and 28 at the time of the attempted murder of Frank Razzak and the double murder in Lawford Street, Greenacre. Prior to the commencement of this series of criminal offences his record was relatively minor. His first conviction was recorded when he was aged 19 years. He was convicted of the supply of cannabis and of the offence described as “goods in custody”. He was released on a bond to be of good behaviour for a period of three years in relation to each offence. Later that same year he was convicted of assault occasioning actual bodily harm. For this offence he was sentenced to perform 250 hours of community service work. On 10 June 2003 he was charged with (i) resisting a police officer in the execution of duty and (ii) with intimidating a police officer in the execution of duty. On 6 September 2001 he was released on a bond to be of good behaviour for two years following his conviction for each of these offences. The shooting of Bilal Razzak occurred before he was released on this bond. The attempted murder of Frank Razzak occurred while he was subject to the bond.

27 No evidence was tendered on Adnan Darwiche’s behalf at the trial or at the sentence hearing. No material is relied upon as mitigating his offences in any degree. He maintains his innocence. The evidence upon which he was convicted of each offence was substantially reliant upon an acceptance of the evidence of Khaled Taleb; an indemnified witness of bad character. Darwiche’s defence was conducted upon the basis that it was Khaled Taleb who bore criminal liability for each of the offences. His counsel put to Taleb that he was the one who pulled the trigger in Bilal Razzak’s bedroom (T 1351-1352); that he organised or took part in the Yanderra Street shooting (T 1381.33-34) and that on an occasion at the El-Zeyat home prior to the double murder (being an occasion when the weapons were at the house) he, Darwiche, had disowned Taleb and the plan(T 1416.17–25). Subsequently Taleb was recalled at the request of Darwiche’s counsel who put that he had been wrong to assert that this conversation occurred at Naseam El-Zeyat’s home. He now put that a conversation in the same terms occurred in a unit in Punchbowl.

28 It was not in issue that in the aftermath of the shooting of Bilal Razzak members of the Razzak family sought out Adnan Darwiche to settle matters between them and that it was Adnan Darwiche who paid the compensation to Gehad Razzak on Bilal’s behalf. Adnan Darwiche matched the description of the physical appearance of the man who shot Bilal Razzak. Khaled Taleb did not. Frank Razzak recognised Adnan Darwiche as one of his assailants. He did not know Khaled Taleb. At the date of the attack on Frank Razzak and at the date of the Lawford Street murders there was cogent evidence that Khaled Taleb could not walk without crutches.

29 The jury were satisfied beyond reasonable doubt of the guilt of Adnan Darwiche in relation to each of these offences and in coming to this view they rejected the hypothesis that Taleb was the perpetrator. An examination of the whole of the evidence, in my view, made that conclusion the correct one.

30 I am satisfied beyond reasonable doubt that Adnan Darwiche was the moving force in the planning and the commission of each of the offences of which he has been convicted.

31 I turn to the provisions of the Crimes (Sentencing Procedure) Act 1999 (the Act). In dealing with each of the offenders I take into account the purposes of sentencing that are set out in s 3A and the provisions of s 21A of the Act. The latter section requires the Court to take into account both the aggravating factors referred to in subs (2) and the mitigating factors referred to in subs (3) that are relevant and known to the Court, together with any other objective or subjective factor that affects the relative seriousness of the offence.

32 None of the offences with which Adnan Darwiche stands convicted are mitigated by any of the factors to which subs (3) directs attention. Although at the date of the shooting of Bilal Razzak Adnan Darwiche did not have an extensive criminal record, it was one that included an offence of violence. An offender’s record of previous convictions may in some circumstances be an aggravating factor. It is not so with respect to the shooting of Bilal Razzak. His previous record of convictions neither aggravates nor mitigates his offence.

33 The shooting of Bilal Razzak is aggravated by the fact it was committed in company and that it was part of a planned criminal activity. It was carried out in a brazen way to stamp Adnan Darwiche’s authority over a rival who was also involved in criminal activity in South-Western Sydney.

34 The maximum sentence for the offence of discharging a loaded firearm with intent to do grievous bodily harm is 14 years’ imprisonment. This was an objectively serious instance of an offence of this nature. I am mindful that prior to the commission of this offence Adnan Darwiche had not served a term of imprisonment. Nonetheless, given the objective seriousness of the offence and the absence of any matters that might mitigate it, I have concluded that it is appropriate to impose a fixed term of eight years’ imprisonment. In light of the sentences that I am shortly to impose I do not intend to fix a non-parole period for this sentence.

35 The attempted murder of FrankRazzak is an offence that is not mitigated by any of the factors to which s 21A(3) directs attention. It is aggravated by a number of factors. The first is that it was committed in company. The second is that it was planned and I am satisfied beyond reasonable doubt that Adnan Darwiche was responsible for devising the plan, which was a vicious one, involving the trap to get the occupants of the Razzak premises out of their home so that he and his companion could shoot them. This offence was carried out in a suburban street by men armed with powerful assault-style rifles, who lacked the skill to control them. It is an offence that is further aggravated by the circumstance that it was committed without regard for public safety.

36 The maximum penalty for the offence of attempted murder is 25 years’ imprisonment. This is an offence that carries a standard non-parole period of ten years. The standard non-parole period is appropriate for an offence in the middle of range of objective seriousness for offences of this character. The attempted murder of Frank Razzak is an offence that is above the mid-range of objective seriousness for such offences. I am required to impose a sentence comprising a non-parole period and a balance of term for this offence. I do not consider that there are special circumstances that justify the specification of a non-parole period that is greater than one third of the non-parole period. For the attempted murder of FrankRazzak, Adnan Darwiche will be sentenced to a non-parole period of 14 years and a balance of term of four years.

37 I turn now to the two murders. Section 61(1) of the Sentencing Procedure Act provides that 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. In the Crown’s submission, these murders are in the category of offences to which s 61(1) applies. No submission was put on Adnan Darwiche’s behalf to the contrary. It remains a matter for the exercise of my discretion. A sentence of life imprisonment is one of great severity; it deprives the offender of any hope and requires that he serve the term of his natural life in custody.

38 The deaths of Ziad Razzak and Melissa Nemra were brought about by Adnan Darwiche’s ruthless determination to assert his authority over the Razzak family. He was entirely indifferent to the loss of other human life in pursuit of his plan. The basis of his hostility to the Razzaks dates back to rivalry over drug dealing but by mid-2003 Adnan Darwiche had abandoned the business that had brought him into competition with the young Razzaks. He professed religious faith. Nonetheless his outlook on life remained that of a petty gang leader who wished to be seen as a person of consequence within the criminal milieu.

39 I have been referred to a number of authorities touching on the application of s 61(1). These include R v Harris [2000] NSWCCA 469; R v Kanaan [2005] NSWCCA 385 and R v Rose [1999] NSWCCA 327. Each case must be determined upon an assessment of its own facts. In cases that call for the imposition of a life sentence, the Court has been satisfied that the offence is one characterised by a feature, or features, of very great heinousness. In my opinion the cold-blooded ruthlessness involved in the planning and execution of the Lawford Street murders is extreme and Adnan Darwiche poses an extreme danger to the community. I have concluded that Adnan Darwiche’s level of culpability in the commission of the murders of Ziad Razzak and Melissa Nemra is so extreme that the community’s interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence.

40 I will date the first of the determinate sentences from 28 November 2003, being the date on which Adnan Darwiche first came into custody. The sentence for the attempted murder of Frank Razzak will be partly accumulated on the first sentence and commence on 28 November 2005. The sentences for the murders will date from today.

41 Adnan Darwiche for the offence of discharging a loaded firearm with intent to do grievous bodily harm to Bilal Razzak I sentence you to a fixed term of imprisonment for eight years to date from 28 November 2003. That sentence will expire on 27 November 2011. In light of the sentences that I am about to impose I decline to set a non-parole period.

42 For the attempted murder of FrankRazzak, I sentence you to a non-parole period of 14 years and a balance of term of four years. That sentence will commence on 28 November 2005. The non-parole period will expire on 27 November 2019. I specify a balance of term of four years to commence on 28 November 2019 and to expire on 27 November 2023.

43 For the murder of Ziad Razzak I sentence you to imprisonment for life. That sentence will date from today.

44 For the murder of Melissa Nemra I sentence you to imprisonment for life. That sentence will date from today.

45 On 30 October 2003 Naseam El Zeyat and Ramzi Aouad murdered Ahmed Fahda. They gunned him down at the AP Service Station Punchbowl Road, Punchbowl. It was a planned execution.

46 On the morning of 30 October 2003 Naseam El Zeyat became aware that a man, whom I will refer to as Mr X, was in contact with Ahmed Fahda. El Zeyat met Mr X and another man, whom I shall refer to as Mr Y, at a park in Wiley Park. Shortly after this meeting Mr Y gave Ahmed Fahda a lift in his Pajero four-wheel drive vehicle. The vehicle ran out of petrol when they were not far from the AP Service Station and Ahmed Fahda and Mr Y pushed it to the service station. Naseam El Zeyat was in telephone contact with Mr Y and came to learn of their location. El-Zeyat and Aouad arrived at the service station in a blue Holden Commodore, which was being driven by the man Mohammed. Each was wearing a hooded top and each had a Glock pistol with a magazine loaded with 15 rounds. As Ahmed Fahda waited while the Pajero was refuelled, El Zeyat and Aouad, walked quickly along the footpath at the front of the service station, pulling their hoods over their heads. They stepped over the low wall, giving access to the apron of the service station and stood a short distance from Ahmed Fahda and each discharged the contents of the magazine from his pistol at him. In all, 29 bullets were discharged, the majority of which found their mark, occasioning multiple fatal injuries to Ahmed Fahda.

47 The killing occurred at a little after 2.00 pm on the afternoon of Thursday 30 October. There were members of the public at the service station and there was traffic travelling along Punchbowl Road. Ahmed Fahda was unarmed and helpless. There could be no question but that it was the intention of each of his assailants to kill him. They made their getaway in the blue Commodore, which was found later that evening in a lane in Greenacre having been set alight.

48 In 2002 Ramzi Aouad had married Ahmed Fahda’s sister, Donna. By August 2003 the marriage had broken down. Ramzi Aouad told Khaled Taleb that he feared that Donna’s brothers would “pop” him now that their marriage was at an end. It was the Crown’s case that Ramzi Aouad was motivated at least in part by a desire to stage a pre-emptive strike on Ahmed Fahda. I am unable to determine what his motive or the motive of Naseam El-Zeyat was for the execution of Ahmed Fahda. The crime was a planned, brazen and merciless assassination that was carried out just 16 days after each offender was involved in the double murder at Lawford Street.

49 A victim impact statement was prepared on behalf of Abdul Fahda, the father of Ahmed Fahda, by his doctor, Dr Javed. He records that Abdul Fahda is very depressed and at times suicidal as the result of his son’s murder. He is not able to cope with life and is taking anti-depressant medication.

50 The Court also received a victim impact statement, which was read in court by Zoe Fahda, the widow of Ahmed Fahda. They had been together for ten years and Ahmed was a much-loved husband. They had two children a boy aged three and a girl aged two at the time of Ahmed’s death. They were a young and happy family and understandably Zoe Fahda has not recovered from her loss.

51 Each of the Victim Impact statements received by the Court serves as an eloquent reminder of the dimensions of the human tragedy inflicted on the families of each of these young people who were so ruthlessly slain. The Court also expresses its sympathy to Zoe and Abdul Fadha and to the Fahda family.

52 I again approach the determination of sentence with respect to the offenders El-Zeyat and Aouad for the murder of Ahmed Fahda consistently with the principles enunciated in Previtera.

53 Naseam El Zeyat was aged 23 years at the date of these events. He had a criminal record for relatively minor offences as a juvenile. He had one offence as an adult: he was convicted on 2 June 1999 of hindering an investigation. He was sentenced to a term of eight months’ imprisonment for this offence with a non-parole period of six months.

54 Naseam El-Zeyat did not give evidence at the trial or on the sentence hearing. No evidence was tendered on his behalf and no submissions were advanced in mitigation of sentence.

55 Ramzi Aouad was aged 22 at the date of sentence. He, too, had a relatively minor criminal record. He was dealt with before the Liverpool Local Court on 20 June 2001 for offences of assault police, resisting police, custody of a knife in a public place and offensive language. In relation to the assault on a police officer, he was placed on a one-year bond to be good behaviour. On 9 May 2001 he was charged with intimidating a police officer in the execution of duty; for this offence he was dealt with before the District Court at Penrith on 29 July 2002. On that occasion he was placed on a two-year bond to be of good behaviour. Each of the three murders of which he stands convicted was committed whilst he was the subject of that bond.

56 Ramzi Aouad did not give evidence at the trial or on the sentence hearing. No evidence was led on his behalf at the sentence hearing and no submissions were advanced in mitigation of sentence.

57 In the Crown’s submission, each of the killings of which Naseam El Zeyat and Ramzi Aouad stand convicted is one to which s 61(1) of the Sentencing Procedure Act applies. No submission to the contrary was put on behalf of either offender. It remains a matter for the Court to determine whether the level of culpability of each of these offenders falls into the category of which the section speaks. Both were young men at the time they carried out these terrible crimes. I consider it probable that each was under the influence of Adnan Darwiche and each had a strong desire to win his approval. To the extent that it is appropriate to have regard to it, I observe that the conduct of each of these young men throughout the two trials was eloquent of their immaturity. These are matters that require that the Crown’s submission be given anxious consideration.

58 It remains that there is nothing to mitigate their crimes and that each murder is one displaying very grave criminality. I have already commented on the ruthlessness of the Lawford Street killings as exhibiting an extreme degree of heinousness. Having carried out these two murders each went on to execute Ahmad Fahda in circumstances of such callousness as, standing alone, to fall within the terms of s 61(1). Notwithstanding their relative youth, I have determined that the level of culpability of Naseam El-Zeyat and Ramzi Aouad for the commission of each of these three murders is so extreme that the community’s interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence.

59 Naseam El Zeyat was charged with the murder of Ahmed Fahda on 26 May 2004 and has been in custody since that date. He was charged with the murders of Ziad Razzak and Melissa Nemra on 28 April 2005. In view of the sentences that I propose, each will commence on 26 May 2004.

60 Ramzi Aouad was charged with the murder of Ahmed Fahda on 26 May 2004. He was charged with the murders of Ziad Razzak and Melissa Nemra on 28 April 2005. In view of the sentences that I am about to impose, each will commence on 26 May 2004.

61 Naseam El Zeyat for the murder of Ziad Razzak I sentence you to imprisonment for life to date from 26 May 2004.

62 Naseam El Zeyat for the murder of Melissa Nemra I sentence you to imprisonment for life to date from 26 May 2004.

63 Naseam El Zeyat for the murder of Ahmed Fadha I sentence you to imprisonment for life to date from 26 May 2004.

64 Ramzi Aouad for the murder of Ziad Razzak I sentence you to imprisonment for life to date from 26 May 2004.

65 Ramzi Aouad for the murder of Melissa Nemra I sentence you to imprisonment for life to date from 26 May 2004.

66 Ramzi Aouad for the murder of Ahmed Fadha I sentence you to imprisonment for life to date from 26 May 2004.

67 Abass Osman was not one of the gunmen in the Lawford Street double murder. His role in the enterprise was to drive the four gunmen to the scene and away from it. He was recruited on the evening before the killing, some five to six hours before that event. He was a willing recruit. He told an associate, Mr W, of the plan, explaining how it was his role to drop Darwiche and the others off in Roberts Road near Lawford Street. He described them as being the soldiers who were going to run down and get the job done.

68 There was evidence that on the evening of 13 October Abass Osman sought out a man who had been in the Canadian army to get advice about the use of a rocket launcher and that he said to this man, “we want to fire it into a house. I just want to know if it goes through a house, fibro house, does it have to hit something hard?”. In the Crown’s submission this discussion serves to highlight Abass Osman’s awareness that deadly force was to be used on the occupants of the Lawford Street premises. Counsel for Abass Osman submitted that I would not be satisfied beyond reasonable doubt that her client was a party to this conversation. During the trial she put to one of the witnesses that the reference to a rocket launcher was an urban myth.

69 Khaled Taleb commenced assisting the police on 6 February 2006. A statement was taken from him in Beirut by Detective Inspector Oxford. The statement was taken over a number of days and involved Taleb recounting a lengthy history of criminal conduct. Inspector Oxford did not reveal to Khaled Taleb what information was available to the police from other sources. Mr W and Khaled Taleb were not associates. Mr W was an indemnified witness, as was Khaled Taleb and, necessarily, it is important to scrutinise the evidence of each with care. Nonetheless, significant in my view is the circumstance that Mr W, in a statement made in November 2004, gave his account of the discussion involving Abass Osman and the rocket launcher. Taleb, who was absent from Australia from 18 October 2003 until March 2006 gave the police an account that a rocket launcher had been conveyed to the El-Zeyat home on the evening preceding the double murder and that there was discussion concerning its use. On Taleb’s version, Abass Osman counselled restraint, telling Adnan Darwiche “you can’t just use that because like you are meant to put them things on your ears to block your ears. You cannot use it if you were to use it like that. It will blow your eardrums out” (T 1211). I am satisfied beyond reasonable doubt that Abass Osman did discuss the possible use of a rocket launcher with a person who was believed to have some military training on the evening preceding the attack on Lawford Street. To my mind not a great deal turns on this issue. The rocket launcher was not used in the attack on Lawford Street. I am satisfied beyond reasonable doubt that Abass Osman knew deadly force was to be used in the course of the planned assault. He drove four men armed with two SKS rifles and two pistols to the scene knowing what it was that each man was to do.

70 Abass Osman was aged 25 years at the date of this offence. He had convictions dating back to when he was aged 19 for malicious damage and common assault. He was fined for these offences. Subsequently he was convicted of driving offences on a number of occasions, including repeated offences of driving whilst his license was cancelled. These led to sentences of imprisonment. Shortly prior to the Lawford Street double murder he was convicted before the Sutherland Local Court of intimidating a police officer in the execution of duty and of assaulting a police officer in the execution of duty. He was fined for each of these offences. On 12 October 2004 he was charged with offences including two counts of supplying a prohibited drug, possession of a prohibited drug, and goods that were suspected of being stolen. He was sentenced in relation to these offences before the District Court on 10 November 2005 to imprisonment for two years with a non-parole period of 18 months. That sentence commenced on 12 October 2004. On 6 April 2005 he was charged with being in possession of a passport that had been falsified. On 21 December 2005 he was sentenced to eight months’ imprisonment to commence on 12 April 2006 for this offence. A non-parole period of six months was specified. The non-parole period expired on 11 October 2006.

71 Abass Osman did not give evidence at trial or on sentence. Some material was tendered in his case on sentence. This included the pre-sentence report, which is dated 3 November 2005, that was prepared in relation to the charges of supplying a prohibited drug. The history recorded in the report is that Abass Osman had been living with his parents and siblings in the family home at Punchbowl. He was unemployed at the time of his arrest. His parents migrated to Australia from Lebanon over 30 years ago. He was one of five children who were born in Australia. He described a materially and emotionally satisfactory childhood. His father died as the result of liver disease and diabetes in April 2005. The offender, although guarded in expressing emotion, appeared to be affected by his father’s death and regretted his inability to be with him in the months before it.

72 Abass Osman attended a local high school and completed Year 10. He commenced an apprenticeship in carpentry, but discontinued it around 18 months prior to its completion.

73 Nouhad Osman the offender’s mother wrote a letter in which she describes Abass, who is her eldest son, as being a loving son and a good friend. Mrs Osman believes that her son would not participate in killing anyone. His elder sister, Abir Saleh, describes the offender as a soft and kind hearted person, who has always shown loyalty to his friends. He has been a loving uncle to her children. Oula, the offender’s younger sister writes a letter in support of her brother in which she speaks of the important role he has played in their family life and of her love for him. Finally, Ahmed Osman, one of the offender’s younger brothers, writes of the distress that the death of their father caused to the family. Ahmed has always found the offender to be a source of support.

74 In counsel’s submission, the culpability of Abass Osman is of a lesser order than the culpability of the gunmen. I accept that is so. Nonetheless, his culpability as a person who was a party to this deadly criminal enterprise remains high. Each murder is aggravated in the respects that I have noted. The offender has expressed no remorse for his involvement in them. I accept that Abass Osman is a loving brother and son but there are no factors that mitigate his offences.

75 Counsel submitted that her client was being housed in conditions of custody that are more severe than those to which the general prison population is exposed. In her submission this should be taken into account as justifying some moderation in the sentences to be imposed on him. On 9 November some documents, that were produced by the Department of Corrective Services in answer to a subpoena were, with the consent of the Crown, delivered to my chambers in order to place some material before the Court relating to his custodial situation. From these it appears that he is being housed in the Goulburn Correctional Complex and that he is classified as A2. A recommendation made at an HSIMC meeting on 7 September records he is to be treated as an Extreme High Security Inmate pending approval from the Commissioner. The material before me is incomplete however I am prepared to assume that the offender is presently classified as an Extreme High Security Inmate and that prisoners with this classification are subjected to conditions of custody that are more onerous than those who are in ordinary discipline. I do not consider that the sentences to be imposed on the offender should be discounted to take this into account.

76 The Court may discount a sentence to reflect the restrictions placed on prisoners who are housed on protection because the nature of their offence is such as to create a risk to their safety should they be allowed to mix in the general prison population. In this case the material records that the offender has been classified because of the seriousness of the outstanding charges. I infer that the assessment takes into account that he is a member of a group who engaged in an incident of extraordinary gun violence any may present more of a management risk than other prisoners. I am not to know how long he will be assessed as an extreme high-risk prisoner. It may be that this will depend in some degree on his behaviour. I do not consider his classification justifies a reduction in the sentence that is otherwise appropriate.

77 Each of the offences has a standard non-parole period of 20 years for an offence in the mid range of objective seriousness for such offences. The offences committed by Abass Osman are, in my view, above the mid range of objective seriousness.

78 Abass Osman was charged with the murders of Ziad Razzak and Melissa Nemra on 6 April 2005. In the Crown’s submission, the sentences for the two murders should be accumulated on the non-parole period for the passport offence since his custody until 11 October 2006 was not referable to these offences. I accept that is so.

79 The sentences that I propose are severe and the balance of the term, while not exceeding one third of the non-parole period, will itself be lengthy and sufficient, in my view, to provide adequate supervision on his ultimate re-integration into the community. I do not consider there are special circumstances for the purposes of s 44(1) of the Sentencing Procedure Act for departing from the statutory proportion so as to specify a balance of term of sentence exceeding one third of the non-parole period for either sentence. I am of this opinion, notwithstanding that I propose a degree of accumulation with respect to the sentence for the murder of Melissa Nemra.

80 Abass Osman for the murder of Ziad Razzak I sentence you to a non-parole period of 22 years. That sentence will commence on 11 October 2006 and expire on 10 October 2028. I specify a balance of term of five years to date from 11 October 2028 and to expire on 10 October 2033.

81 For the murder of Melissa Nemra I sentence you to a non-parole period of 22 years to commence on 11 October 2009. The non-parole period will expire on 10 October 2031. I specify a balance of term of five years to date from 11 October 2031 and to expire on 10 October 2036.

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