Regina v Klein

[2005] NSWSC 1222

CITATION:	Regina v Klein [2005] NSWSC 1222
HEARING DATE(S):	28/09/05, 01/12/05
JUDGMENT DATE :	2 December 2005
JUDGMENT OF:	Whealy J at 1
DECISION:	Sentence to imprisonment for 24 years. Sentence to commence from 2 June 2004. Set a non-parole period of 18 years commencing on 2 June 2004 and expiring on 1 June 2022. Offender will be eligible to be released to parole on that day.

LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Previtera (1997) A Crim R 76 Bollen (1998) 99 A Crim R 510 Simpson [2001] NSWCCA 534
PARTIES:	Regina v Gaby Michael Klein
FILE NUMBER(S):	SC 2002/64
COUNSEL:	Mr M. Hobart - Crown Mr A. Wetmore - Offender
SOLICITORS:	Office of the Solicitor for Public Prosecutions Foleys Solicitors - Offender

LOWER COURT JURISDICTION: Local Court

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

FRIDAY 2 December 2005

2002/64 - REGINA v Gaby Michael KLEIN

SENTENCE

1 HIS HONOUR: On 15 February 2001 Gurkan Moustafa (the deceased) was shot and killed while he was working in his business known as Replay Communications at 124 Victoria Road, Gladesville. He was shot twice but the first shot would not have been fatal. The bullet passed through his chest without damaging any vital organs. Dr Cala, a forensic pathologist said that the second shot was fired from a very short distance, possibly only a few centimetres, from the back of the deceased’s head. This second shot killed the deceased instantly. It is clear beyond reasonable doubt that who ever it was who fired the second shot must have intended to bring about the death of the deceased as indeed happened.

2 On 4 September 2001 the offender was arrested in Queensland and brought back to New South Wales. At Mascot Police Station on 6 September 2001 he was charged with the murder of the deceased.

3 The offender was indicted before me on 17 August 2005 in relation to the deceased’s murder. To the charge that he did on 15 February 2001 did murder Gurkan Moustafa, the offender pleaded Not Guilty.

4 On 28 September 2005 the jury returned a verdict of Guilty. Sentencing submissions were made on 1 December 2005 and the proceedings were adjourned until today when sentence is to be pronounced.

5 The central issue at the offender’s trial was whether it was he who was the person who shot and killed the deceased on 15 February 2001. The Crown relied on direct evidence in the form of an alleged confession made by the offender to one Jacob Compagnon on the afternoon of the killing. In addition, the Crown sought to prove its case by way of an extensive circumstantial case that pointed, so the Crown argued, to an irresistible conclusion that it was the offender who shot the deceased. A number of possibilities inconsistent with the offender’s guilt were left before the jury. Principal among these was the possibility that the offender’s presence in Gladesville on day of the shooting was that he was there, totally unconnected with the shooting, but to provide an alibi for Adam Kalnins, an employee of the shop, who was in someway part of an enterprise to rob the shop. This enterprise, according to the argument, went wrong and a person or persons unknown were the perpetrators of the shooting of the deceased.

6 Consistently with the jury’s verdict, I find beyond reasonable doubt that it was the offender who shot the deceased on 15 February 2001. I reject the offender’s evidence as untrue that he was there only as part of an alibi arrangement for a robbery that went wrong. I find that the Crown has eliminated to the requisite standard all reasonable possibilities inconsistent with the guilt of the offender.

7 It is necessary for me to make more detailed findings of fact in relation to the offence for which the offender has been convicted. Any facts found adverse to the offender must be facts, which have been demonstrated beyond reasonable doubt. Findings of fact in favour of the offender may be demonstrated on the balance of probabilities.

8 The offender had known the deceased and his brother Ken Moustafa for a considerable number of years. In the early to mid-90’s, the offender’s brother Danny Kalischer, operated a mobile phone business which had as one of its outlets the shop at 124 Victoria Road Gladesville. This business traded under the name of Auscall. Adam Kalnins was the second or third in charge of the business during those years. Ken Moustafa worked for Auscall for a period of time and during these years the Kalischer family generally met or dealt with in some fashion both the deceased and Ken Moustafa. The offender himself worked in his brother’s business at this time. His employment was described as that of a salesman and “a run-a-round”. At some stage during the 90’s, Danny Kalischer sold the business to other operators.

9 In March 1999 the deceased and his brother Ken commenced to operate a business in their own right at 124 Victoria Road, Gladesville. Their mobile phone business was called Replay Communications. The proprietor of the business was the deceased but it is clear that the brothers operated loosely as a partnership. It appears that Ken Moustafa was the more dominant of the two brothers and that he made most of the hard business decisions as and when they were required. Adam Kalnins came to work in the business as an employee towards the end of 2000. Prior to that time, he had been operating a business in the city, which ultimately failed. It seems that the deceased had an interest in this city business although this was not a fact known to his brother Ken Moustafa until after the deceased’s death.

10 At the end of 2000 it appears that Ken Moustafa was owed a sum of money by Danny Kalischer. The precise amount of this debt and its nature have not been made clear in the evidence. Nevertheless, it appears reasonably clear that Ken Moustafa was agitating to recovers the monies from Danny Kalischer. Another member of the Kalischer family, Ronnie Kalischer, had an interest in a business, which sold mobile phones both by way of wholesale and retail. In December 2000 Adam Kalnins ordered a number of Ericsson phones from Ronnie Kalischer. This order was made on behalf of Replay Communications and apparently with the approval of the deceased and his brother. The phones were delivered and payment was made. In January 2001 a further order for mobile phones was made by Adam Kalnins on behalf of Replay Communications. On this occasion phones worth about $1,500.00 were delivered to the premises but payment was not made. It appears that Ken Moustafa took the position that he would not pay for these phones until and unless he was provided with the whereabouts of Danny Kalischer who owed him money. In any event, Ronnie Kalischer sought payment of the $1,500.00 on a number of occasions. It appears that Ken Moustafa stood his ground, however, and he indicated that he would not pay unless he was able to come to some arrangement with Danny Kalischer about the money that was owed to him.

11 In December 2000, before the issue of the phones had come up, the offender had rung Ken Moustafa and suggested that he leave Danny Kalischer alone. This conversation occurred in the context of an apparent threat being made by the offender against Ken Moustafa.

12 On 14 February 2001 Peter Kalischer rang and spoke to Ken Moustafa at the shop. Peter Kalischer (or Peter K as he was sometimes known) is the father of the offender, Danny Kalischer and Ronnie Kalischer. He was a self-employed commercial agent. It seems that Ronnie Kalischer had asked him to collect the debt from Replay Communications for the $1,500.00 relating to the mobile phones. During the conversation it became apparent that Ken Moustafa was not going to pay the money unless he could get Danny Kalischer’s address so he could go and see him about the outstanding debt. Peter Kalischer told Ken Moustafa that he did not know where Danny Kalischer was living. He said, “You cannot blackmail me like that. One’s got nothing to do with the other”. The conversation ended in a “stand-off” between the two men with the threat of legal action hanging over the conversation. Peter Kalischer reported the conversation to Ronnie Kalischer probably on that day.

13 The offender knew of the debt owing to his brother Ronnie Kalischer. He had discussed repayment of the debt both with the deceased and with Adam Kalnins (see ERISP Question and Answer 46; 50-53 and 62). At 9.14am on 15 February 2001 the offender rang his brother Ronnie Kalischer. I am satisfied beyond reasonable doubt that one of the matters discussed in this call would have been the fact that the offender was going over to Gladesville that day. This would have been discussed between the two men in relation to the debt and its collection. I am satisfied beyond reasonable doubt that the offender decided, at that point of time, that he would during the course of the day, when Ken Moustafa had left the shop, apply some pressure to the deceased in order to expedite the recovery of the debt.

14 The offender then left his residence at Tathra Place Castle Hill and drove a red and white Honda trail bike to the Gladesville shopping centre. He was wearing a white motor cross helmet with dark goggles and he was also wearing dark shorts and a dark T-shirt. Quite apart from its colour the motorcycle was distinguished by a noticeable sticker on the rear left mudguard, a Husqvarna sticker. The number plate had been removed from the bike. In addition to the clothing I have mentioned the offender was wearing whitish socks and runners. He was wearing a backpack. I am satisfied beyond reasonable doubt that in addition to the clothing in the backpack there was a loaded pistol.

15 The offender went to the Post Office at Gladesville and collected some mail. He then drove around Gladesville shopping centre stopping at various locations. From time to time he parked his bike in various locations. Generally, he kept his helmet on while all this was happening although he removed it at times, for example when he went to the Caltex Service Station.

16 Earlier that morning the offender had rung Adam Kalnins at the shop. The offender’s telephone records from his residence at Castle Hill show that this call was at about 9.51am. Mr Kalnins said that the call related to nothing more than discussion about going to the Castle Hill Tavern that night. The offender and Kalnins in fact ran into one another at about 11.20 that day. Mr Kalnins said he was on his way down to the Caltex Service Station to get some milk and the newspapers when he ran into the offender coming from the direction of the nearby bottle shop. Mr Kalnins said he asked the offender if he was there to collect the money owing. He said that he told the offender that Ken and Gary were both at the shop. The offender said that he was on his way to work. After their discussion Mr Kalnins went to the service station and purchased the milk and the newspapers and then returned to the store.

17 Between 11.30 and shortly before 12 the offender was seen by members of the public in various locations in and around the shopping centre. For example, he was seen by Jessica Vesper who then lived on the corner of Punt Road and Victoria Road. The offender was on his motorbike intently facing up Victoria Road and looking towards the mobile phone shop. Ms Vesper returned to this location as she was going to work about 15 minutes later. The offender was still in the same position and she rode past him while he was parked near the corner of Punt Road and Victoria Road. At 11.50am Ken Moustafa left the mobile phone shop to go to an auction house near the Sydney Fish Markets. This he did regularly in order to purchase second hand mobile phones. At about five to twelve two Telstra workers, who had seen the bike and rider earlier in the morning, came through the Tennis Ranch car park and down to the Caltex Service Station. As they approached the shop they saw the same bike and rider on the western driveway of the service station facing out towards Victoria Road. They observed that the motorcycle rider had plenty of opportunity to drive onto Victoria Road because of breaks in the traffic but he did not do so. The men were suspicious of the bike and its rider by this time and made observations about his clothing and the fact that part of a tattoo was visible on his left thigh. One of the men, Mr Paterson, noticed the Husqvarna sticker on the left guard of the bike, the backpack on the rider’s back and the fact that there was no number plate on the bike. The two workers entered the Caltex shop at 11.56. They remained there for a little time while ordering their lunch. Just prior to this at 11.55 the offender had used the public telephone in the Caltex Service Station to ring Ronnie Kalischer. I am satisfied beyond reasonable doubt that the thrust of this call was that the offender told Ronnie Kalischer to ring the shop to tell Adam Kalnins to leave the shop. At 11.56 Ronnie Kalischer rang Adam Kalnins on his mobile phone. There was a dispute between Ronnie Kalischer and Adam Kalnins as to the nature of this conversation. I accept however that the conversation was generally in the terms indicated by Mr Kalnins. His evidence was that Ronnie Kalischer rang and said words to the effect: “If I were you I wouldn’t be hanging around the shop”. Mr Kalnins said he didn’t take this too seriously. In fact he discussed it with the deceased who asked him who had rung. He told the deceased that it was Ronnie making threats. The deceased said “Oh, don’t worry about him”. Mr Kalnins then thought to himself “if someone were going to come down there to the shop or if anything were going to happen about the debt he would grab something to eat”. He decided to go down to the garage to get something to eat and drink so that he could be there for the rest of the afternoon. When he came to the service station shop a minute or so later he saw the offender on his motorbike in much the same position as he had been described by the two Telstra workers. Mr Kalnins said the offender said something to him that seemed at the time quite bizarre. He asked, “Is it left to go to Ryde?” He said that the offender then took off on the bike and he himself went into the service station and bought a fruit salad and some vegetable juice. Having paid for these purchases he then walked back up to the shop.

18 When Adam Kalnins came into the shop he saw the deceased lying on the floor face down. He saw blood on the wall and on the back of the deceased’s head. He said he went into panic mode and straight away dialled triple-0 and called for an ambulance to come as a matter of urgency. This call was recorded as having been made at 12.02pm. A minute later Adam Kalnins rang Ken Moustafa on his mobile and asked him to come urgently. According to Mr Kalnins, Ken Moustafa told him to call the police. In the meantime a customer had come into the shop and he assisted by going out onto the road and flagging down a passing police car. The situation that then developed was quite chaotic. The customer and the police officer were attempting to revive the deceased. Mr Kalnins was in a state of obvious panic and shortly afterwards Ken Moustafa arrived and commenced behaving in a markedly hysterical and upset manner. Shortly thereafter the ambulance and the police arrived.

19 It can be seen from the facts that I have outlined that the offender took off on his motorbike from the service station driveway at about 11.56. A neighbour, a Mr Daniel Colazzo who had earlier seen the bike and rider in Pearson Street on the footpath that gives access to the mobile phone shop, saw the bike drive into the liquor shop parking area. This was close to midday.

20 Stephen Crass worked in the bottle shop next to the mobile phone shop. At about midday he said he saw a person wearing a white helmet walk past on Victoria Road. The person had his hands in a bag in front of him and was wearing white shoes and socks. This person walked past the gateway to the bottle shop on Victoria Road but then, within a second or two, came back and entered through the gateway. The person walked down past the bottle shop where Mr Crass was standing. He put his hands up as if to take off his motorcycle helmet and then, when he saw Mr Crass, he puts his hands back down again so that the helmet remained in place. Mr Crass said the person walked past the eastern side of the bottle shop and then Mr Crass lost sight of him. I am satisfied beyond reasonable doubt that it was the offender who was seen by Mr Crass on this occasion and that he was walking through to the parking area at the back of the bottle shop where he had left his bike.

21 It is apparent from the facts, as I have described them that the offender was working within a very tight time frame. Nevertheless, I am satisfied beyond reasonable that it was he who entered the shop at about midday and that it was he who confronted the deceased with a pistol. I cannot be satisfied beyond reasonable doubt that the offender at all times that morning had the intention of shooting and killing the deceased. But I have no doubt that, after he had fired off the first shot and when the deceased fell to the floor, the offender then decided that he would despatch the deceased by killing him in execution style. As I have earlier recounted, he then shot the deceased from a distance of only a few centimetres, the bullet entering the back of the deceased’s head and killing him instantly. The offender then fled the scene going out through the bottle shop and riding away on his motorbike.

22 The offender then drove to an address at Higginbotham Road Ryde about two kilometres away. This was the home of Jacob Compagnon and his mother, Jacqui Compagnon. Mrs Compagnon was home at the time but she was engaged in her office out near the kitchen making a number of business phone calls when the offender arrived. There is no doubt that the offender knew that he was in a precarious position at this stage. He had just shot and killed the deceased and he was riding on a motorcycle without number plates with a pistol in his possession. One reason that he went to the Compagnon household was to hide the weapon. I am satisfied beyond reasonable doubt that he did this by placing it in a manhole in the ceiling in the upstairs bathroom and that he was able to do so without Mrs Compagnon knowing what he was doing. The offender made a number of phone calls from this location. At 12.14pm he rang Jacob Compagnon seeking his assistance in relation to the situation in which he found himself. Compagnon was engaged at work and did not return to the house until sometime a little later in the afternoon. The offender also rang his brother Danny at 12.46. He rang Laura Saaib at 12.48. She was his girlfriend at the time. She gave evidence at the trial, which I accept that during this telephone call the offender said to her “I need a favour. I don’t want you telling anybody that I have been at Gladesville today”. A little later in the afternoon, Jacob Compagnon returned to his home at Gladesville. He then drove the offender and his bike to 13 Pitt Town Road, Kenthurst. This was the address of his brother Danny’s place of business and home. At Kenthurst the offender cleaned down the bike, took off the Husqvarna sticker and re-attached the number plate, putting it in place with fresh bolts and nuts. Either there or elsewhere on that afternoon, the offender disposed of the clothing he had been wearing including the motorcycle helmet. Later, either on 17 February or perhaps a day or so after, the offender removed the pistol from Jacob Compagnon’s house and disposed of it in an unknown location.

23 In relation to the Crown’s direct evidence case I am satisfied beyond reasonable doubt that the offender was driven by Jacob Compagnon down past the mobile phone shop on the afternoon of 15 February 2001. Equally I am satisfied that there was some discussion between them regarding the killing of the deceased. But I am not satisfied beyond reasonable doubt that the offender confessed the killing to Jacob Compagnon, at least in the terms contained in Jacob Compagnon’s earlier statements and his evidence given at committal. I did not believe Jacob Compagnon’s evidence in the witness box at trial but in addition, I have severe reservations about the reliability of the various statements he made to the Crime Commission and to the police and to the previous Crown Prosecutor and his instructing solicitor. This aspect of unreliability is particularly significant in relation to the alleged confession.

24 I am satisfied beyond reasonable doubt however, by the powerful circumstantial case advanced by the Crown that it was the offender who shot the deceased on 15 February 2001. That this is so, in my opinion, is overwhelming.

25 The facts I have briefly stated not only establish the offender’s guilt in relation to the offence. They demonstrate a number of features that are very important in the assessment of the gravity of the objective seriousness of the offence and the degree of criminal culpability involved.

26 I should make it immediately clear that I consider the level of culpability in the instant offence as at a very serious level indeed. This was, in my opinion, a very bad murder. The offence involved the use of a pistol and was part of a planned criminal activity even though the precise nature of the activity is not clear.

27 Nevertheless, I am not satisfied beyond reasonable doubt that the shooting itself was the result of any carefully planned and prepared scheme. True it is the offender had the gun with him when he went to Gladesville on 15 February 2001. But I do not find that he set out on that morning with any firm intention at that stage to kill the deceased. Clearly, he intended to confront the deceased in some manner in the office once Ken Moustafa had left the premises. It is not possible to know with any certainty precisely what was in the offender’s mind that morning as he moved from place to place in the Gladesville shopping centre. There was, at midday on that day, clearly a confrontation of some kind between the offender and the deceased and it was at this point of time, I am satisfied, that the offender decided that he would shoot and kill the deceased. The evidence does not establish what was in the offender’s mind. Nor does it enable the Court to understand why a decision was reached to kill the deceased over such a trivial debt owed, in effect, by the deceased’s brother. It may be, as was suggested in argument during the trial, that the decision arose out of bravado in the heat of the moment. It may be, as was also suggested, that the offender decided to make a “big man” of himself in the eyes of his brothers regarding the outstanding debt. Perhaps the offender intended to rob the deceased or at least frighten him. These matters must regrettably remain in the realm of speculation. But the plain fact is that the offender deliberately shot the deceased at close range with the intention of bringing his life to an end. The deceased was defenceless, a small man and a person who was in less than robust health. It was a cowardly and dreadful act to kill him as the offender did.

28 As I said, this was a killing that was objectively very serious indeed.

29 Before turning to the subjective features in the offender’s case I should say at this stage that pursuant to s 28(2) of the Crimes (Sentencing Procedure) Act 1999, I have received a Victim Impact Statement from the mother of the deceased.

30 Mrs Moustafa speaks movingly of the terrible impact the death of her son has had on the family. The Court would like to express to the family of the deceased its sympathy, fully realising the futility of mere words at such a tragic time. It is to be hoped that the opportunity to express grief and loss through this statement may perhaps go some way towards helping the family cope with the tragic loss of Gurkan Moustafa.

31 I have come to the conclusion however that, in accordance with the principles in Previtera (1997) 94 A Crim R 76 and Bollen (1998) 99 A Crim R 510 that it is not appropriate to have regard to those statements in determining what sentence should be passed on the prisoner. I should make it clear, however, that the material was not admitted for the purpose of increasing the penalty otherwise appropriate for the crime and has not been taken into account or used by me to aggravate the seriousness of the crime.

Subjective circumstances

32 I turn now to consider the offender’s subjective features. The offender is now 34 years of age. He was 29 at the time of the offence. I have received statements from Peita Lane and Melissa Madden. These tell me something of the character and background of the offender. He has two children and obviously is in a close and loving relationship with them. The offender is described in these references as a very gentle and tender person who would not normally physically harm or threaten anyone, even when provoked. It appears the offender has a strong sense of family and that, in a number of respects, his upbringing was not an easy one. It appears he has spent much of his life searching for a father figure to replace that of his own absent father.

33 The impression I get from these references is that the callous and brutal slaying of the deceased in February 2001 was entirely out of character for the person so well known to these obviously sincere young women. The offender’s mother has been present throughout the trial and although she has given no evidence before me, it is quite apparent that the offender has a close relationship with her.

34 The offender has a number of previous convictions but none of them, I consider, have any real relevance to this offence. I do not propose to make use of his prior criminal record in any way adverse to him and I will treat the offender as a person who in general terms does not have a relevantly significant record of previous convictions.

35 Every account of the offender paints a picture of a person who is in no way violent or predisposed to violently take the life of another. This aspect of the offender’s character only makes more perplexing his actions on 15 February 2001. I am driven to conclude however that, given the imposition of a stern sentence, the offender is unlikely to re-offend and must be regarded as a person with reasonable prospects of rehabilitation.

36 I can find no contrition in the offender and no material has been placed before me which would suggest that he has remorse for his offence. In fairness to him, he has consistently denied that it was he who shot and killed the deceased. The absence of contrition does not in any way mean that the punishment to be imposed on the offender is to be increased. It simply means that he is not entitled to an allowance that might otherwise be available to him were there evidence of genuine remorse and contrition.

The sentence to be imposed

37 It is now necessary to come to a conclusion in relation to the appropriate sentence to be imposed upon the offender in relation to the offence of murder for which he has been found guilty. In doing so it is necessary to consider the matters set out in s 21A of the Crimes (Sentencing Procedure) Act 1999. It is also necessary to have regard to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. The current regime of standard non-parole orders does not apply to this offence, having regard to its date of commission.

38 I have in detailing a number of topics in these remarks on sentence, already traversed those matters both in aggravation and mitigation that appear to me to be relevant. I do not propose to repeat them here.

39 Mr Wetmore on behalf of the accused submitted that the offender ought to be punished on the basis that the offence fell below the mid-range of seriousness for the offence of murder. Secondly, he submitted that it would be open to the Court to find special circumstances arising out of thr offender’s generally previous good character and the fact that he is a relatively young man whose conduct in life demonstrates that, apart from this terrible offence, he is normally a decent caring person.

40 In relation to the first of these submissions, for the reasons I have given at length in these remarks on sentence, it is my view that the present offence must be regarded as one of very considerable seriousness. Regrettably, I am unable to accept Mr Wetmore’s submission as to the level of criminality involved. Secondly, I do not consider that a finding of special circumstances is open in the present matter. While I accept it is often the case that an underlying premise behind a finding of special circumstances is the prospect of rehabilitation, particularly having regard to the youth and previous character of an offender, I consider that, having regard to the length of the sentence I propose to impose, the period of parole that will result, if the usual proportion of the non-parole period to the total sentence is maintained, will be sufficient for the offender’s rehabilitation upon release without any further extension. In addition, there are no other circumstances that I have been able to identify that would warrant the finding of special circumstances and hence justify a shorter than usual non-parole period (Simpson [2001] NSWCCA 534).

41 I have concluded that I should impose a sentence of 24 years imprisonment. In setting a non-parole period, I find, for the reasons that I have stated, there are no special circumstances for the non-parole period to be less than three-quarters of the term of the sentence. The offender has been in custody in relation to this offence for one year five months and 29 days. I propose to backdate the sentence to take into account this time spent in custody.

42 Gaby Michael Klein, I sentence you to 24 years imprisonment. This sentence is to commence from 2 June 2004. I set a non-parole period of 18 years commencing on 2 June 2004 and expiring on 1 June 2022. The offender will be eligible to be released to parole on that day.

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