Regina v Kanaan, Mawas, El Assaad

[2002] NSWSC 774

CITATION:	Regina v Kanaan, Mawas, El Assaad [2002] NSWSC 774 revised - 30/08/2002
FILE NUMBER(S):	SC 70045/00; 70208/00; 70209/00
HEARING DATE(S):	3/4/02 - 6/6/02
JUDGMENT DATE:	29 August 2002
PARTIES :	Regina Michael Kanaan Rabeeh Mawas Wassim El Assaad
JUDGMENT OF:	Wood CJatCL at 1

COUNSEL :	T. Thorpe (Crown) A. Morison (Kanaan) J. Gordon (Mawas) M. Ainsworth (El Assaad)
SOLICITORS:	S E O'Connor D J Humphreys
CATCHWORDS:	CRIMINAL LAW - Murder - pleas of not guilty - jury verdict of guilty - Sentence - gang members - drug dealing.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Baker NSWCCA 20 September 1995 R v Boyd (1995) 81 A Crim R 260 R v Cribb NSWCCA 4 November 1994 R v Fernando (1999) NSWCCA 66 R v Garforth NSWCCA 23 May 1994 R v Glasby (2000) 115 A Crim R 465 R v Glover NSWSC 29 November 1991 R v Harris (2000) 50 NSWLR 409 Regina v Hearne [2001] NSWCCA 37 R v Heatley NSWSC 27 February 1998 R v Leonard NSWCCA 7 December 1998 Regina v Mastronardi [2000] NSWCCA 12 R v Milat NSWSC 27 July 1996 R v Ngo [2001] NSWSC 1021 Regina v Pham (1991) 55 A Crim R 128 R v Rose (1999) NSWCCA 327 R v Street NSWCCA 17 December 1996 R v Suckling (1999) NSWCCA 36 Regina v Townsend and Cooper NSWCCA 14 February 1995 R v Verney NSWCCA 23 March 1993 Veen v The Queen (No 2) (1988) 164 CLR 465 Wilson v The Queen (1992) 174 CLR 313
DECISION:	Sentences:; 1. Michael Kanaan: Imprisonment for life.; 2. Rabeeh Mawas: imprisonment for 25 years to date from 17 September 1999, and to expire on 16 September 2024. Non parole period of 19 years similarly to date from 17 September 1999 and to expire on 16 September 2018.; 3. Wassim El Assaad: imprisonment for 24 years to date from 17 September 1999 and to expire on 16 September 2023. Non parole period of 18 years similarly to date from 17 September 1999, and to expire on 16 September 2017.

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ at CL

Thursday 29 August 2002

70045/02 - Regina v Michael Kanaan
70208/00 - Regina v Rabeeh Mawas
70209/00 – Regina v Wassim El-Assaad

SENTENCE

1 HIS HONOUR: On 10 April 2002, Michael Kanaan, Rabeeh Mawas and Wassim El Assaad were each placed on trial for the murder of Danny Karam. By their verdict, returned on 6 June 2002, the jury found each of them guilty of that offence. They now appear for sentence.

FACTS

2 Danny Karam was, prior to his death, a vicious and notorious member of the Sydney underworld, who for many years had supervised a protection racket in the Kings Cross area, whereby he exacted, through force and threat, payments from dealers in narcotics. He had allegedly acquired his skills in violence and terror while a member of a militia in the Lebanon.

3 Through his activities, certain drug dealers who operated on the Streets of Kings Cross were effectively licensed by him to ply their trade. In return for payments of up to $4000 per week they were allowed to operate, and to receive protection from the rival gangs which were organised by members of the other criminal associations who regrettably have managed to continue their operations in the area. Not surprisingly their continued, and wholly unjustifiable presence in the life of this City, has led to rivalries and outbursts of inter gang violence, and facilitated the ready availability of cocaine and other narcotics.

4 During the course of the trial, evidence was led in relation to some of the incidents of violence associated with these groups, including disputes with Russell Townsend, the Ibrahim brothers and henchmen such as Tongan Sam, with whom Karam was in a territorial conflict at the time of his death. The appearance of these individuals in the trial, and some exploration of their activities, became necessary in view of the defence case that one or other of them was in fact responsible for the murder of Danny Karam, rather than those before the Court.

5 In that regard, apart from the ongoing turf war, and occasional bashings of runners allied to rival gangs, there was evidence that Karam’s shooting occurred on the first anniversary of the kneecapping of Danny Sukkar for which Karam and Alex Taouil were said to have been responsible.

6 Be that as it may, the verdict of the jury was largely based upon the evidence of three witnesses, one of whom, known by the pseudonym Alan Rossini, was an inner member of Karam’s gang, a group which was given the tag “DK’s Boys”. The other two, who were provided with the pseudonyms Oscar and Peter Laycock, and who were cousins of Rossini, were bit players who were used to run messages, to collect moneys and to deliver drugs to the runners.

7 By the time of Karam’s murder on 13 December 1998, Kanaan was effectively his senior lieutenant, although through a blood relationship, Karam was probably more dependant upon another associate, Alex Taouil. Mawas, El Assaad, and another man Charlie Gea Gea were more recent additions, but together with Kanaan they controlled a slice of the drug dealing territory themselves, in so far as they had their own runners and paid a licensing fee to Karam.

8 Karam was not only the controller of a protection operation, but he similarly organised the supply and delivery of drugs, mainly cocaine but also heroin, within the city.

9 In all, the operation was significant and it is of very real concern that it was able to operate as long as it did, in an organised and open way with tentacles spreading into the drug distribution business of this city, with a capacity to assemble an arsenal of fire arms of some size, and a willingness to use them as required. To maintain the supply of drugs it established drug houses in various locations, including Rushcutters Bay, Paddington and elsewhere, where drugs were stored, deals were capped, and “rent moneys” were taken. Runners were engaged, weapons were issued by Karam, mobile phones and SIM cards were obtained in false names, and regularly exchanged, and large sums of cash and drugs were moved around. Viewed in hindsight, it was an utterly surreal world into which the prisoners became drawn, and in which they surrendered any personal values they had.

10 By the time of Karam’s murder, the group had established a safe house in the Addison apartment building, on the corner of Riley and Fitzroy Streets, Surry Hills. These premises, like the others, were used for the capping of cocaine and as an assembly place for gang members, whose permanent places of residence were elsewhere. It was at these premises that Kanaan, El Assaad, Gea Gea and Mawas met and plotted the murder of their boss, Karam, during the months preceding his shooting.

11 For part of that time, however, it needs to be recognised that Mawas was out of the country. It also needs to be said that the idea of killing Karam emanated from Kanaan and that when first raised Mawas said that it was not necessary, and that they could do other things on the side.

12 Although Rossini said that he was not directly involved in the plot to kill Karam, he became aware, through his presence at the unit, as to what was being discussed. He explained that various scenarios were considered including shooting Karam as he returned to his home, a plan that was abandoned when it was realised that this might attract attention to themselves, since his place of residence was not widely known. Another plan to kill him with a hot shot of heroin came unstuck when he became suspicious that heroin supplied to him via Gea Gea had been spiked.

13 Finally it was decided that he would be shot, when the occasion conveniently arose, during one of his visits to the Riley Street safe house. For that purpose the prisoners, Gea Gea, and Rossini spent a number of nights at the unit waiting for his arrival. Each had access to a weapon, and weapons were kept at the unit, concealed behind a dishwasher in the kitchen.

14 Rossini attributed the reason for the decision to betray and to assassinate their leader, to dissatisfaction as to the share of the moneys which they were receiving for their efforts in running Karam’s protection racket and their own drug dealing activities. It was their view, Rossini said, that Karam was receiving the lions share for little effort other than the occasional stroll through Kings Cross, to show that he was still around, thereby trading on his reputation. Additionally, it was said that they were getting tired of the way in which he was treating them, relating in particular to the outbursts of violence and abuse for which he was well known.

15 In Kanaan’s case, Rossini additionally suggested that there was some residual resentment relating to Karam’s diversion to himself of the proceeds of an earlier hydroponic crop of cannabis for which he and Rossini had carried out all the work, and to Karam’s refusal to repay a loan which had been made to him by Kanaan’s parents.

16 The opportunity for which they were waiting came on the night of 13 December 1998, when Karam arrived at the unit for the purpose of collecting two weapons, an assault rifle and a shotgun, which had been stored there. Quite what was in his mind is unclear, although it emerged that he had been discussing some venture with another associate in the criminal milieu, George Cheikh, the details of which he was unwilling to share with his own boys.

17 When it was learned that he had buzzed the security intercom system at the front door, Kanaan, Mawas, and Gea Gea hastily armed themselves with weapons and left via the stairs to the underground car park. They commandeered a motor vehicle which had been parked there by the Laycock brothers, who were engaged in moving items from Riley Street to a newly acquired safe house in the Peak apartment building in Chinatown.

18 They exited the building and left the vehicle in Little Riley Street, possibly intending to use it as a getaway vehicle. Whatever their purpose, they then took up positions in the street, waiting for Karam’s return.

19 Karam entered the unit, and spent some little time there chatting with Rossini, and with El Assaad who had left with the other men but had then returned. They were joined by the Laycocks, who had come back to the unit after their vehicle was taken, and possibly by one or two other associates who called in for a brief period. While there, Karam arranged for the Laycocks to take the two weapons which he had come to collect, down to his Toyota Rav vehicle which he had parked in Fitzroy Street.

20 Having done this, the two Laycocks made themselves scarce by retiring to the front bedroom, where they lay on the beds. When Karam left the unit to return to his vehicle, El Assaad used a mobile phone, at about 8.59 pm, to send a message to the waiting gunmen in the street. As Karam re-entered his vehicle and sat in the drivers seat, they emerged from behind. A volley of shots in two bursts was heard and seen by a number of residents of the Addison apartments and nearby buildings. Although not all of the accounts of these witnesses was identical, there was a common thread to the effect that more than one man fired shots into the nearside of the vehicle from close proximity, and that after walking away, one man returned and fired some more shots into the drivers side window.

21 Forensic examination of the scene and of damage to the vehicle, as well as a post mortem examination of Karam’s body, showed that 16 shots had been fired, 5 from a weapon of .45 calibre, 5 from a weapon of .357 or .38 calibre, and 6 from a weapon of 9 mm calibre. The ballistics evidence showed that in each instance the shots were fired by a single weapon of the relevant calibre.

22 It was accordingly accepted that three weapons were used in the shooting, and consistently with that, a number of the eyewitnesses reported seeing three men running from the scene.

23 Rossini and the Laycock brothers, along with El Assaad, made their way down to the Toyota after the shooting and found Karam sprawled across the front seat, obviously dead.

24 El Assaad opened the car door and took Karam’s mobile phone. Thereafter the four men left the area, in two separate groups, meeting up later at Kensington. The Laycocks were however sent back to Riley Street to retrieve a .357 calibre revolver which El Assaad had left in the unit. It had not been used in the shooting, but it was removed no doubt out of concern that the apartment would be searched by police, as in fact occurred the next day.

25 Of the weapons used in the shooting only one was ever recovered by Police. This was a .45 calibre weapon which Karam had issued to Rossini, and which was abandoned by him during a later incident and then found by police. It was matched by ballistics evidence to one of the weapons used in the shooting of Karam.

26 Not surprisingly, police were faced with a formidable task in identifying the killers, given Karam’s reputation and the number of people, of similarly violent criminal disposition, with whom he had come into holts. There were as many potential suspects as he had enemies. However through the efforts of the Crime Commission of NSW, Rossini and the Laycocks were secured as material witnesses, and then given undertakings in order to allow them to give evidence to the effect of that which I have summarised. That evidence included admissions which Rossini attributed to each of Kanaan and Mawas of having themselves shot Karam. In the case of El Assaad, whose criminality related to having acted as the person who alerted the shooters to Karam’s imminent arrival on the street, at a time when he was party to a joint criminal enterprise to murder, Rossini’s account involved direct evidence of hearing him place the telephone call.

27 There were inconsistencies in the details of the accounts which Rossini and the Laycocks had given over the several interviews, and court hearings in which they have individually participated, as well as some differences in detail between each other. However, the common thread of the evidence as to that which occurred was consistent. It was accepted by the jury, whose verdict I must also accept.

28 Such inconsistencies or differences which occurred, I have little doubt, attached to the inevitable progressive disclosure which occurs in a situation such as the present, particularly where the witnesses here were finding their way and were also endeavouring, so far as they could, to minimise any problem for their relatives. Additionally it was due, I am satisfied, to the inevitable differences in observation and recollection concerning the somewhat shocking events which unfolded, and to the fact that neither of the Laycock brothers who were quite young, appeared to be endowed with any great intelligence or awareness of what they had let themselves into.

29 As a result of the inquiries of the Crime Commission, Kanaan, Mawas and El Assaad were all arrested on 17 September 1999 and charged with Karam’s murder. Gea Gea left Australia for the Lebanon on 22 May 1999, and has not returned. It has not been possible to secure his extradition, and it is unlikely that he will see fit to return to Australia.

30 The prisoners have each been held in custody since the time of their arrest, although they have also been serving time for other offences for which they have been sentenced. To the details of any pre sentence custody I will return when I come to consider the question of totality and the proper commencement date for the sentences of imprisonment which are clearly called for, in relation to the present offence.

31 I find that this was a deliberate assassination which was carried out under Kanaan’s leadership, substantially in order to advance the interests of the prisoners in ongoing criminal activities. While it may not have had that result, it was motivated to a considerable degree by greed, and it was callous and cold blooded. While the prisoners are to be sentenced for the offence of murder, and not for any other criminal offences, it is impossible in assessing the objective criminality of this killing to ignore those wider circumstances, or the motive for it. The principal motive of Kanaan, and his recruitment of the others into his plan, I am satisfied, was to acquire an entrenched position for his subgroup in the trade of narcotics, and to increase their standing within that section of the criminal milieu which chooses to devote itself to that area of activity. A subsidiary motive was his sense of grievance at not being properly treated by Karam.

32 The fact that the offence was carried out in such a context, and involved the use of firearms, which appear to be regarded by many in the world of drug dealing as tools of the trade, was in my view, an aggravating circumstance.

33 There is not the slightest reason to suppose that the prisoners killed Karam to escape from his evil spider web, or that they had any intention of abandoning the business of selling cocaine, and of exacting protection money from drug runners on the streets of Kings Cross.

34 In these circumstances, the objective criminality of each of Mawas and Kanaan, as shooters, and of El Assaad as a party to a joint enterprise to murder Karam, is of a very high order indeed.

35 Murder remains the most serious crime in the criminal calendar: R v Verney NSWCCA 23 March 1993, and the sanctity of human life is a principle which stands higher than all others in the criminal law: Wilson v The Queen (1992) 174 CLR 313 at 341.

36 No mitigation of the offence was provided by the fact that the killing was of a vicious criminal who was himself a danger to society. The community no more tolerates his killing than it did his criminal behaviour. Even less does it tolerate the notion of gangland shooting, whether internecine or otherwise. On the other hand, it cannot be overlooked that it was Karam who encouraged the prisoners, all young men in their early twenties, to enter this milieu, and who helped to blunt their sensibilities to the real world.

37 In a case such as the present the duty of the sentencing Court is clear – it must impose sentences that are significantly punitive, but even more importantly, sentences that send a clear deterrent message. If anyone wishes to behave in this fashion, and to engage in any form of gangland warfare, particularly the crime of murder, then such person can only expect a condign sentence.

38 If the level of culpability reaches that referred to in s 61(1) of the Crimes (Sentencing Procedure) Act 1999, as that section has been explained in Regina v Harris (2000) 50 NSWLR 409, then that sentence will be a mandatory life sentence. Whether such a sentence is called for in relation to the prisoners, I will consider when I come to deal with them individually.

39 While the prisoners are not to be punished additionally for electing to go to trial, the fact that they did so speaks ill of whether or not they hold any feelings of remorse or contrition. Again I will deal with that when I come to consider their individual cases. Otherwise it may be observed that the election to go to trial denies to them the benefit of s 22 of the Crimes (Sentencing Procedure) Act.

40 At this stage, it is sufficient that I record my finding that each is to be sentenced upon the basis that this was a deliberate and cold blooded assassination carried out with considerable premeditation. By reference to the number of shots fired, the weapons used, and the proximity from which they were discharged, the only conclusion open is that this was a shooting carried out by the prisoners with an intent, and with a strong determination, to kill. That is itself a circumstance of some aggravation: Regina v Hearne [2001] NSWCCA 37.

41 It is true that at the time of the offence the three prisoners were each aged in their early twenties. However, the gravity and violence attaching to this offence, and their election to conduct themselves in the way that hardened criminals of more advanced years might do, cannot be relied upon by way of any significant diminution in their objective criminality for the reasons outlined in Regina v Townsend and Cooper NSWCCA 14 February 1995, Regina v Pham (1991) 55 A Crim R 128; and Regina v Mastronardi [2000] NSWCCA 12.

42 I turn next to the circumstances of each offender, and to the sentences which I conclude should be imposed.

MICHAEL KANAAN

43 This offender presents as a considerable conundrum. Outwardly courteous, well spoken, and of apparent intelligence, he appears for sentence at a time when he is already serving a double life sentence for the fatal shooting, on 17 July 1998, of two young men while they were standing outside a hotel in Five Dock. As appears from the judgement of Greg James J, the sentencing Judge in that matter, Kanaan, while driving past the hotel came upon two persons having an altercation in the street. He made a remark to these persons which caused one of them to walk over to his car and to throw a punch at him. For no legitimate reason, Kanaan then left the vehicle and shot dead two persons who were standing on the footpath, and fired another shot at the man who had earlier walked over to him. Attempts to fire further shots at this man failed only because the weapon ran out of bullets.

44 His callous disregard for human life was encapsulated in the observation which he made to the passengers in his vehicle as he left the scene: “as long as we are all right, fuck everyone else. Fuck the Aussies, as long as we’re all right. If it happened again I would do the same thing…”.

45 Not surprisingly Justice Greg James found that Kanaan had “perpetrated an entirely vicious and cold-blooded series of crimes with overwhelming ruthlessness”, his response being disproportionate to a situation of very limited significance. This was regarded as falling within the worst case contemplated by the legislature as punishable by the maximum sentence.

46 Kanaan was in fact born on 23 May 1975, in Australia, to Lebanese parents, being one of four children who were nurtured in favourable circumstances. He is now aged 27 years. He left school after completing Year 12 and commenced tertiary studies in social sciences, completing two years of that course. He has had no significant employment history, his only stated lawful employment having been in a labouring capacity with a car auction firm.

47 The first entry on his criminal record concerned charges of possession of a prohibited drug and of a prohibited article, for which, on appeal, a s 556A recognisance to be of good behaviour for 2 years was imposed in June 1998. He was also fined that year for common assault, in the Bankstown Local Court.

48 The next entries relate to the convictions for the 2 counts of murder, and the one count of malicious wounding with intent to cause grievous bodily harm, in respect of which he was sentenced by Justice Greg James to 2 life terms, and to a fixed term of imprisonment for 25 years. The offences which gave rise to those convictions preceded the present offence by approximately five months. He had been taken into custody on 1 June 1999 for another matter which is still outstanding, and the sentences imposed by Justice Greg James were backdated to 17 September 1999, being the date of arrest for those offences.

49 The present offence occurred while he was subject to a bond to be of good behaviour, and that is an aggravating circumstance. The offences which attracted the life sentences, and the sentence of 25 years imprisonment, also occurred during the currency of that bond.

50 Regrettably he has, by his behaviour, betrayed his background of a supportive family which gave him every opportunity of establishing a reasonable and law-abiding lifestyle. Why it is that he chose to descend into the criminal milieu, and to become a person who apparently kills without emotion or compunction, has not been explained.

51 Whatever be the underlying reason for this, he has shown himself by his past behaviour and by this offence to be a real danger to the community, to the point which attracts a consideration of s 61(1) of the Crimes (Sentencing Procedure) Act, as well as a consideration of the principles referred to in Veen v The Queen (No 2) (1988) 164 CLR 465.

52 The imposition of a mandatory sentence of life imprisonment without opportunity for release on parole, in the case of a young man who is now aged only 27 years, has a terrible significance and it effectively crushes out all hope of rehabilitation, thereby giving rise to the concerns noted in R v Harris at para 124, and in Regina v Garforth NSWCCA 23 May 1994. However, the fact of the prior convictions, and the level of heinousness displayed by the prisoner in this case, in my view do not permit other than the maximum sentence of life imprisonment provided by s 19A of the Crimes Act 1900 (NSW).

53 That he should have killed again, in an equally cold blooded manner, within six months of the prior killings, places the interest of community protection at a premium.

54 Even without the earlier convictions, I would have been forced to the conclusion that this prisoner’s responsibility for, and his involvement in, the present killing, was one of the magnitude of extreme culpability of which s 61(1) speaks. In this regard it was he who introduced, and then relentlessly promoted the plan to kill Karam over many months. Without his leadership and encouragement, it is certain that the other prisoners would not have contemplated or embarked upon this shooting. While it does not involve the full flavour of a contract killing which saw Phuong Ngo imprisoned for life (R v Ngo [2001] NSWSC 1021), it is not entirely dissimilar from such a case.

55 What, in my view, takes this case into the s 61(1) category is the cold blooded nature of the prisoner’s conduct in promoting and carrying out Karam’s execution. If I am wrong in that assessment, then I have no doubt whatsoever that the accumulation of murders in which he has been directly involved, in each instance as a shooter, meets the s 61(1) criterion.

56 Michael Kanaan, for the murder of Danny Karam I sentence you to imprisonment for life, such sentence to commence from 17 September 1999. I do not fix a non parole period as I have no power to do so.

RABEEH MAWAS

57 The pre sentence report shows that Mawas was born on 1 March 1977, and is now aged 25 years. He was the eldest child in a family of 4 children born to Lebanese parents. When he was aged 16 years, his mother was diagnosed with breast cancer. As his father was a shift worker with State Rail, he took over the responsibility for the care and control of his younger siblings. The progression of his mother’s disease, and her death in 1996, led to a partial separation of the family when the youngest child was sent back to the Lebanon to be cared for by relatives.

58 As a consequence of these events, Mawas received counselling for the anger and grief associated with his mother’s illness and with the additional responsibilities which he had assumed. Following his mother’s death he was for a time suicidal and treated with medication. It was after this event that he began to use drugs, mainly cocaine and ecstasy, as a consequence of which his life began to unravel, eventually leading to him becoming an associate of Kanaan and Karam, although not to the point of being one of the preferred DK Boys who were entitled to a gold ring.

59 He reported to the Probation and Parole Service that he had tried two apprenticeships but had been unable to settle into any long term employment. Obviously his education was disrupted by the events within the family, and the subsequent further fragmentation within the family when his father and other siblings also returned to the Lebanon.

60 He first came into contact with the law in 1994, when he was fined in the Children’s Court for an offence of malicious damage. Since then he has received multiple convictions, in Local Courts and in the District Court, for motoring offences, some relatively minor and others which are more serious. The record which he has accumulated, since early 1997, while involving numerous entries, however is not particularly serious. Moreover in his favour, it is not one involving any incidents of violence.

61 On 17 April 1997, he was fined, disqualified and ordered to perform 70 hours of community service following convictions for two counts of driving or using an unregistered vehicle, two counts of driving an uninsured vehicle, 1 count of driving while his licence was cancelled, one count of driving while disqualified, and one count of stating a false name and place of abode. By reason of his unsatisfactory performance of the CSO he was ordered to serve two month’s periodic detention, which was later increased to three months periodic detention cumulative upon the periodic detention which was imposed, in the District Court, on appeal for the next series of offences mentioned. That periodic detention order was itself later revoked by the Parole Board and replaced by a fixed sentence of 13 weeks, to be served between 4 May 1999 and 2 August 1999.

62 On 21 August 1997 he was back before the Local Court on further charges of driving an unregistered and uninsured motor vehicle, driving in a manner dangerous and driving while cancelled. On appeal to the District Court, on 23 October 1997, a two-year period of supervised recognisance, and 7 months periodic detention, commencing on 5 November 1997, were substituted. That periodic detention order was also later revoked by the Parole Board, and a further fixed sentence of 13 weeks was imposed to be served between 3 August 1999 and 1 November 1999.

63 For breaches of the recognisance, he was sentenced on 22 July 1999, to 2 fixed terms each of 2 months commencing on 22 July 1999 and concluding on 21 September 1999.

64 On 18 June 1999, he was back before Burwood Local Court on 2 charges of disqualified driving, 1 charge of driving in a manner dangerous, and two charges of goods in custody, along with other offences relating to the provision of a false name and place of abode, obtaining a license by a false representation, and fraudulent use or alteration of a license.

65 For some of these offences he was fined. However, for 1 offence of disqualified driver and 1 offence of goods in custody, he was sentenced to fixed terms of 3 months each, to commence on 4 May 1999 and to conclude on 3 August 1999. For the other offences of disqualified driver, and for 1 offence of driving in manner dangerous, he was sentenced to concurrent fixed terms of 182 days also to commence on 4 May 1999, and to expire on 1 November 1999.

66 As a consequence of this somewhat complex history it appears that he was still serving a sentence or sentences for unrelated matters between 4 May 1999 and 1 November 1999. He was arrested for the present offence on 17 September 1999, and on another matter which is still outstanding on 1 June 1999, and bail refused on both matters.

67 I am of the view, taking into account the totality principle, that it would be appropriate to commence the sentence which should be imposed for the present offence, on and from the date of arrest, namely 17 September 1999.

68 The custody reports placed before me show that, since being placed into custody in 1999, Mawas has accumulated some 13 internal charges, recorded in Exhibit AP, relating to fighting, abusive language, threatening behaviour and language, intimidation, unauthorised property, obstruct correctional officer, resist/impede search, as well as other lesser disciplinary breaches. The last such entry was 14 April 2002. In part the explanation for these breaches may lie in the inevitable problems which a young prisoner will have in settling into the prison environment, and in the fact that he was, during the relevant period, the subject of repeated moves from one Centre to another. As such they do not necessarily give rise to the concerns which might appear on first impressions.

69 Mawas was accepted into the High Risk Management Unit at Goulburn Correctional Centre in June 2002, and since that time he has been seen by a psychologist and assessed for anger management. He has agreed to participate in an alcohol and drug assessment, and has indicated a desire to complete his Year 10 School Certificate. His conduct within the unit since that time has been assessed as generally satisfactory, as is confirmed by the Unit 9 Running Sheet. This may be a favourable, although preliminary, sign of him trying to do something more constructive with his life, than that suggested by the past 5 years.

70 It would appear that his immediate family have now all returned to the Lebanon to live, and he entertains concern for their welfare if they were to return, by reason of the risk of reprisals. Contact is now confined to phone and letter. He has other friends and some community ties. A favourable report from Mr Bader, the Youth Development Officer for the Lebanese Moslem Association, has been provided which depicts him as an essentially good person who had suffered and been significantly affected by his mother’s loss.

71 This impression as to the reason for him going off track has some support from the reports of Dr Westmore and Mr Diment, who have carried out psychiatric and psychological assessments of him in recent times.

72 Dr Westmore found no evidence of any major depressive or psychotic illness, but drew attention to the fact that he appeared to have become quite an isolated individual by reason of the fact that he was being held on segregation, for reasons which were not readily apparent to him.

73 Mr Diment similarly noted that his history of drug abuse and lack of purpose in life had led him to an association with “DK’s Boys” and to become involved in this group as a form of job. Clinical testing showed that he was somewhat above average on reliable measures of clinical anxiety and depression, probably related to worry over the current proceedings. He thought that there was evidence of him suffering a depressive illness at the time of his mother’s illness and death. Otherwise there were no signs of any psychopathology. One test did however show that he was a person who could be influenced by others.

74 The Crown submitted that the level of culpability of Mawas in the present killing was so extreme that a life sentence should be imposed. I have given anxious consideration to that submission, but am not persuaded that Mawas’ culpability is of that order.

75 A review of the cases where sentences for the term of the offenders natural life has been imposed, including for example, R v Glover NSWSC 29 November 1991; R v Garforth NSWCCA 23 May 1994, R v Cribb NSWCCA 4 November 1994; R v Baker NSWCCA 20 September 1995, R v Boyd (1995) 81 A Crim R 260, R v Milat NSWSC 27 July 1996, R v Street NSWCCA 17 December 1996, R v Heatley NSWSC 27 February 1998, R v Leonard NSWCCA 7 December 1998, R v Rose (1999) NSWCCA 327, R v Fernando (1999) NSWCCA 66, R v Suckling (1999) NSWCCA 36, R v Harris (2000) 50 NSWLR 409, R v Glasby (2000) 115 A Crim R 465 and R v Ngo [2001] NSWSC 1021, shows that they have generally involved killings which were sex or thrill related, multiple killings, killings involving torture or undue savagery, contract killings, political assassinations, cases involving a degree of psychopathology or other circumstances clearly demonstrating a long term ongoing danger to the community, or killings which are seriously antithetical to the fabric of society or to the justice system, into which category I would for example place the deliberate or pre-planned murder of Police in the execution of their duty, or of witnesses in pending trials.

76 In the present case Mawas does not have a record for prior violence, nor does he show any signs of psychopathology. The explanation for his participation in this killing lies substantially in the earlier fragmentation of his life, and his descent into the utterly surreal world which Rossini himself identified. As I have earlier observed, although I am satisfied that he was directly involved as a shooter, I am also satisfied that his participation occurred because he was a follower rather than an initiator of the killing.

77 To some extent I consider that his immaturity led him not to fully appreciate what he had let himself into, and that once caught up in Kanaan’s planning it would not necessarily have been easy to walk away.

78 In all these circumstances I do not consider that the maximum sentence is called for, although the sentence to be imposed must be a significant one, because his level of culpability remains very high.

79 Rabeeh Mawas, for the murder of Danny Karam, I sentence you to imprisonment for 25 years to date from 17 September 1999, and to expire on 16 September 2024. I fix a non parole period of 19 years similarly to date from 17 September 1999 and to expire on 16 September 2018. The earliest date on which you will be eligible for release on parole will be 17 September 2018.

80 I do not find special circumstances to exist. In that regard the only matter possibly identified as such relates to the length of the sentence, and the need for extended supervision post release, in order to facilitate the prisoner's return to the community. The potential period of 6 years release on parole would be sufficient for that purpose.

EL ASSAAD

81 This offender was born on 10 November 1977, and is now aged 24 years.

82 The pre sentence report shows that he is an Australian born of Lebanese parents, and the eldest child in a family of 6 children. He is reported to be very family orientated, and to be highly regarded by his parents and siblings. It is said that he occupies an important position in the family structure, and his incarceration has apparently caused his mother and siblings considerable stress.

83 Between the age of 13 years and 16 years, he and the rest of his family, returned to the Lebanon so that the children could attend school, and learn the Lebanese language and culture. Regrettably during this period, in the aftermath of the war, he became accustomed to carrying a gun for self protection. It is said that he was exposed to a considerable amount of anarchy and violence which left its mark upon him.

84 His subsequent return to Australia was described as difficult, as a result of the loss of contact with his former friends. Due to his familiarity with guns and violence, he drifted on his own account, into an undesirable peer group. He did not complete his education to Higher School Certificate, and instead worked in the family coffee shop. He is said not to have had a history of drug or alcohol abuse.

85 He presented to the Probation and Parole Service as polite and cooperative, and as having expressed an intention to change his ways, now realising that the most important things he has are his family and religion. He has not caused any real problems while in custody, his record being confined to various incidents of unauthorised possession of property. The Governor of the MRRC and the Block Area Manager have each reported positively in relation to his general attitude and demeanour, and his attendance at the weekly Muslim prayer meetings. They added that he had shown himself to be a role model for other Lebanese inmates with regards to reducing violence and improving cultural harmony within the centre.

86 Their reports were supplemented by a report from the Islamic Chaplain at the MRRC who indicated that he had demonstrated remorse and repentance, and that he encouraged good behaviour in other inmates and leads the way by example. Whether that remorse and repentance are related to his prior offences or to the present offence remains unclear, it being the case that he has not admitted to his responsibility in relation to the murder of Danny Karam.

87 His earlier criminal record is not impressive, although again it is not quite as serious as its length might first suggest, largely revolving, as it does, around offences involving motor vehicles.

88 That record commences with a conviction for break enter and steal, in respect of which a 2 year recognisance was imposed on 9 April 1996.

89 On 14 May 1997 a 2 year recognisance, and a fine were imposed for an offence of attempt to steal a motor vehicle, which sentence was confirmed in the District Court. For a breach of that recognisance, he was later sentenced in the District Court, on 16 June 1999, to a fixed term of 1 month commencing on 1 June 1999.

90 In the meantime, he was convicted and fined, in the Local Court on 5 February 1997, for various motoring offences, including drive while cancelled, and drive in a manner dangerous.

91 On 28 April 1997 and 15 May 1997 he was again fined in relation to motoring offences, including two offences of driving while cancelled, two offences of stating a false name, one offence of goods in custody, as well as offences of driving an unregistered vehicle, and using an uninsured vehicle.

92 On 10 March 1998, he was back in the Local Court, on 3 charges of drive while disqualified, offences which earned him 3 fixed terms, each of 4 months. On appeal to the District Court on 24 April 1998, these sentences were reduced to sentences of 3 months periodic detention, each to commence on 8 May 1998.

93 On 4 August 1998 he was convicted and fined for an offence of driving a conveyance taken without the consent of the owner.

94 On 20 October 1998, he was sentenced to concurrent fixed terms of 1 month and 6 months for offences of goods in custody and steal motor vehicle, which sentences were later confirmed, on appeal to the District Court on 28 July 1999, the sentences being directed to commence on 1 July 1999, and to expire on 31 July 1999, and 31 December 1999, respectively.

95 On 7 July 1999, he was convicted and sentenced in the Local Court to a fixed term of 6 weeks for an offence of goods in custody, which conviction and sentence were again confirmed on appeal by the District Court on 28 October 1999, the sentence being directed to commence on 28 October 1999, and to conclude on 8 December 1999.

96 On 24 August 1999 pending the last mentioned appeal, he was fined for further motoring offences involving the use of an uninsured and unregistered vehicle, the fraudulent use of a licence, and stating a false name; additionally he was sentenced to further fixed terms of 6 months, each to commence on 1 June 1999 and to expire on 30 November 1999, for 4 further counts of drive while disqualified.

97 Then, on 21 December 1999 he was sentenced to concurrent fixed sentences of imprisonment for 20 months, with non parole periods of 15 months, when convicted of counts of possessing an unauthorised firearm and an unregistered firearm. On this occasion, appeals to the District Court were dismissed, on 13 July 2000. These sentences were directed to commence on 1 January 2000 and to expire on 31 August 2001 with the non parole periods expiring on 31 March 2001. The offences to which they related occurred at a time when he was present with other offenders who became involved in a shoot out with police at White City. He was himself shot during this incident, but it was not alleged that he was responsible for any of the gunfire which occurred.

98 The net result of this history, which involved a significant adjustment and backdating for various offences, is that although arrested and bail refused for another matter from 1 June 1999, and for the current offence from 17 September 1999, he is to be regarded as having been held in custody in respect of the other offences mentioned between 1 June 1999 and 31 March 2001, that being the date on which he would have necessarily been released on parole for the firearm offences.

99 Having regard to the principle of totality, however, it similarly appears appropriate to backdate the sentence for the present offence to the date of arrest, namely 17 September 1999.

100 Similarly in his case I have given consideration to whether or not the maximum sentence of imprisonment is required. For essentially the same reasons as those which applied to Mawas, I conclude in the case of El Assaad that I should not impose such a sentence.

101 To some extent his participation was less heinous than that of those who were prepared to discharge their weapons at Karam, although like a wheelman in an armed robbery, or the person who contracts another to kill on his behalf, he was integrally involved in the killing and he played an important role in sending the alert.

102 It cannot be said that the killing would not have occurred without his participation. Nevertheless, he joined in as an active member of the enterprise, and he knew precisely what was to occur.

103 On the more favourable side is his absence of any prior record for violence, or signs of psychopathology of the kind which would suggest that he poses any continuing danger to law abiding members of the community. On the contrary, there are some signs that he can make a positive contribution while within the prison system, and that the prospects for rehabilitation are reasonable.

104 Again, I believe that it was his immaturity, and early exposure to violence and anarchy, which led to him being attracted into the world established by Karam and Kanaan, and then foolishly following them, in their drug dealing activities, and in the murderous plot hatched by Kanaan. Upon that basis, I am of the view that the case does not meet the s 61(1) criteria, although a significant sentence must be imposed.

105 I am not persuaded, particularly having regard to his somewhat worse record that there is reason for any significant difference in sentence between him and Mawas. Some small difference is however justified, since he has demonstrated positive signs of a commitment to rehabilitation, and his objective criminality on this occasion was marginally less serious.

106 Wassim El Assaad, for the murder of Danny Karam I sentence you to imprisonment for 24 years to date from 17 September 1999 and to expire on 16 September 2023. I fix a non parole period of 18 years similarly to date from 17 September 1999, and to expire on 16 September 2017. The earliest date on which you will be eligible for release on parole will be 17 September 2017.

107 Similarly I do not find any special circumstances to exist. In that regard I am satisfied that the period of 6 years during which the prisoner will be potentially eligible for release and supervision on parole is sufficient to enable his reintegration into the community.

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Last Modified: 11/28/2007