Zahed, Abdul v The King

[2025] NSWCCA 24

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Zahed, Abdul v R [2025] NSWCCA 24

Hearing dates:

12 February 2025

Date of orders:

28 February 2025

Decision date:

28 February 2025

Before:

Basten AJA at [1];
McNaughton J at [58];
Weinstein J at [59]

Decision:

(1)   Grant the applicant leave to appeal against the sentence imposed on him for being an accessory after the fact to murder.

(2)   Dismiss the appeal.

Catchwords:

CRIME – appeal against sentence – conviction for being accessory after the fact to murder – offender said to have acted out of “misguided sense of loyalty” to brother – lengthy criminal history – risk of institutionalisation – low objective gravity – manifest excess

EVIDENCE – sentencing on basis of agreed facts – agreed facts in relation to sentencing of co-offender tendered on issue of parity – agreement in that case that brother shot victim not accepted as a fact – rules of evidence not applicable – no error in refusing to rely on facts agreed in other case except on parity

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Evidence Act 1995 (NSW), ss 4, 60, 136

Cases Cited:

Barrett v R [2011] NSWCCA 213

Jackson v R [2010] NSWCCA 162

Keen v R [2024] NSWCCA 157

Likiardopolous v The Queen (2012) 247 CLR 265; [2012] HCA 37

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

McCosker v R [2022] NSWCCA 127

R v Lemene [2001] NSWCCA 5; 118 A Crim R 131

Category:

Principal judgment

Parties:

Abdul Kadir Zahed (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
M Thangaraj SC / J Petry (Applicant)
M Millward (Respondent)

Solicitors:

Zahr Partners (Applicant)
Solicitor for the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2022/00265635

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Citation:

[2024] NSWSC 695

Date of Decision:

07 June 2024

Before:

Button J

File Number(s):

2022/00265635

JUDGMENT

1. BASTEN AJA: On 7 June 2024 the applicant, Abdul Kadir Zahed, was sentenced by Button J in the Common Law Division for a single offence of being an accessory after the fact to a murder, on a plea of guilty. ^[1] The sentence was 3 years 9 months, with a non-parole period of 2 years 6 months. The non-parole period was fixed to commence on 15 January 2023 and all but six months has now been served.

   1. R v Abdul Zahed [2024] NSWSC 695 (“Sentencing judgment”).

2. The grounds of appeal were as follows:

1. His Honour erred in giving less weight to the applicant’s having acted out of a misguided sense of loyalty vis-à-vis his brother on the grounds that there was no evidence that the applicant’s brother had committed to the principal offence.

2. His Honour erred in failing to find special circumstances, notwithstanding the risk of the applicant becoming institutionalised.

3. The sentence imposed was manifestly excessive.

3. The murder in question occurred on the night of 10-11 December 2014. The victim was Youssef Assoum. The applicant was arrested on 6 September 2022.

4. In considering ground (3), manifest excess, it will be necessary to identify in more detail the agreed facts relating to the murder of Mr Assoum. The basic facts should be outlined before addressing grounds (1) and (2).

Background facts

5. At approximately 11:30pm on 10 December 2014, Mr Assoum drove to the home of Tarek Zahed, the older brother of the applicant, in a Volkswagen Touareg. The agreed facts noted that “he was detained (including with the use of restraints), violently assaulted, and shot in the [right thigh] with a firearm by persons known to the offender.” The cause of death was the blood loss caused by a gunshot wound to the right thigh which perforated the right femoral artery. There were lacerations to the posterior and right side of the scalp with two underlying fractures of the skull.

6. Shortly after midnight, Mr Assoum and the applicant were driven to Claribel Street, Bankstown in the Volkswagen Touareg. Claribel Street is in the vicinity of Bankstown-Lidcombe Hospital. At 12:10am, a telephone call alerted medical staff at the Hospital to a “body down the road from the hospital”. Emergency services attended the scene, and located the unconscious body of Mr Assoum. The applicant was present, shirtless and his shirt had been wrapped around Mr Assoum’s leg. The agreed facts continued:

“16    Once the ambulance arrived, the nurse saw the [applicant] talking with another male for approximately 10 seconds. This other male was known to the [applicant] and was involved in [Mr Assoum’s] death. The other male ran to the … Volkswagen Touareg. The other male was yelling, ‘shit, shit, shit’ and slammed the door before speeding off.

17    The paramedics commenced treating [Mr Assoum]. Treating medical staff observed [Mr Assoum] with a deep laceration to his right forehead, a puncture wound upon his neck, and a large amount of blood coming from his mouth. There was an injury to his upper right thigh, which had an item wrapped around it. He had no pulse.

18   [Mr Assoum] was taken to Liverpool Hospital via ambulance where he was pronounced deceased by the emergency registrar at 12:47am.”

7. On 12 December 2014 Tarek Zahed told a person, referred to only as “Male A”, to clean the Volkswagen Touareg and dispose of it. Male A paid a man known as Triantafilos Vlangos to get rid of the vehicle, which Mr Vlangos sought to do by driving it to an area in Georges Hall where he set light to it. The fire was seen by police officers at about 3:13am and fire services attended and extinguished the fire. Two bullets were located inside the car near the front passenger seat, with the blood of Mr Assoum on them.

8. It was an agreed fact that at the time of the violent assault and shooting of Mr Assoum, the applicant “was in the general vicinity” but was not “part of any joint criminal enterprise to detain and assault” Mr Assoum. At no stage did the applicant disclose the identity of the persons involved, and up to and including the date of 12 January 2015, provided “an entirely false version of events in order to assist the persons involved in [Mr Assoum’s] murder. He also wrote Tarek Zahed out of the events of the entire evening in order to protect him.” ^[2]

   2. Statement of agreed facts, 6 February 2024, par 40.

9. The false accounts commenced with him telling the emergency services attending the unconscious Mr Assoum on 11 December: “I live in the street and I heard a noise, so I came out and saw this.” When police attended at the scene, the applicant said: “They just came out, and they left us here. I was screaming. Wake up, wake up.” He described Mr Assoum as “a brother”. He later told the police officer at the scene: “All I am going to say is they stole my phone and drivers’ licence.” The agreed facts stated: “This was a further false version of events given by the offender to police to assist the persons involved in the murder of [Mr Assoum].” ^[3]

   3. Statement of agreed facts, par 20.

10. The applicant was on parole in December 2014 in relation to a conviction for a gun offence. On 16 December 2014 he met his Parole Officer and gave him the following “false version of events of the night in question”: ^[4]

“…He did not know where he was but he was in the company of the deceased (distant cousin) when he was hit in the back of the head. When he woke, he saw his cousin bleeding and he did CPR. He saw a man who he [chased] down for help and [then] entered the hospital. He began to kick the door to try to get help. He returned to the victim and continued to try to save his life. After 9 minutes he said Police came and was aggressive towards him and placed him in handcuffs and charged him, he said he was held and remained in handcuffs for 12 hours and he was being treated harshly by Police.”

This account was almost entirely false.

4. Statement of agreed facts, par 34.

11. On 4 January 2015, a charge was laid against the applicant for concealing a serious indictable offence. On the same day, a telephone conversation between him and Tarek Zahed was recorded during which the applicant said, “I swear to God, I will do 20 years as [long as] I know you are living happy”. To which Tarek Zahed said, “I am happy”, and the offender said: “My only concern is you”.

12. There was a further recorded conversation between the two men on 7 January 2015 in relation to the charge laid against the applicant in the course of which Tarek Zahed said to the applicant “… How can you not remember where you went then? If you remember that they came to the house how can you not fucking remember where you went with the bloke?”, to which the applicant said, “I copped a beating …”, and his brother replied, “If you copped a beating, you don’t remember nothing brother.”

13. It was an agreed fact that:

“38   During the above calls, the [applicant] was conspiring with Tarek Zahed in order to mislead police about the circumstances surrounding (and immediately following) [Mr Assoum’s] murder.”

14. The statement of agreed facts continued:

“39   On 13 January 2015, 8 days after the above conversation between Tarek Zahed and the [applicant], ^[5] the solicitor for the [applicant] wrote to the police enclosing a statement of the [applicant] dated 12 January 2015. In summary, the [applicant] stated that on the evening of 10 December 2014, [Mr Assoum] came over to his family home with his wife. He stated that [Mr Assoum] only stayed for 5 to 10 minutes before leaving, however, Mr Assoum came back later that night. They went for a drive. The [applicant] was smoking heroin. They drove to an unknown house and suddenly saw two or three persons with dark coloured balaclavas over their head appear. He believed that he was struck on the head. Next thing he remembers is waking up with [Mr Assoum] lying next to him badly injured. He assisted [Mr Assoum] by applying a tourniquet to the wound on his leg. He begged for help from the surrounding people.”

5. Presumably referring to the first conversation on 4 January and not the one in the immediately preceding section which occurred on 7 January.

Ground 1 – identity of shooter

15. The applicant sought to establish that the sentencing judge had been in error in failing to accept that there was evidence identifying the applicant’s brother, Tarek Zahed, as the person who shot Mr Assoum. There was no such assertion in the statement of agreed facts prepared for the purpose of the applicant’s sentence hearing. However, both Mr Tarek Zahed and Mr Vlangos had been the subject of similar deals with the Director of Public Prosecutions, resulting in each being sentenced for an offence similar to that to which the applicant pleaded guilty. Material relating to the co-offenders, including statements of agreed facts with respect to Mr Vlangos and Tarek Zahed, formed part of the Director’s tender bundle on the sentencing of the applicant. The statement of agreed facts with respect to Mr Vlangos included the following:

“The Crown case is that in between 11pm and midnight on 10 December 2014, co-accused Tarek and Abdul Zahed together detained (including with the use of cable ties) and violently assaulted [Mr Assoum] inside his Volkswagen Touareg motor vehicle …, including Tarek Zahed shooting [Mr Assoum] in the leg at close range with a firearm.”

16. The statement as to the joint enterprise between the applicant and his brother, at least so far as the applicant was concerned, was contradicted by the agreed facts in his case, namely that he was not involved in any such joint criminal enterprise, but was merely “in the vicinity of” the violent assault and shooting. The applicant’s case in this Court was that the sentencing judge ought to have disregarded any reference in that passage in the Vlangos facts concerning the applicant, but treated the reference to his brother Tarek Zahed as proof of the fact that his brother was the shooter.

17. To understand how that contention was dealt with at the sentencing, it is necessary to refer to both the judgment on sentence and the transcript of the hearing.

Reasons for sentence

18. The judgment commenced with reference to the charge. The judge noted that the indictment had charged that, “between 11 December 2014 and 6 February 2024, knowing that the murder of Mr [Youssef] Assoum … had been committed by certain persons on or about 11 December 2014, he afterwards maintained and assisted those persons”. ^[6] There followed three observations, of which the first related to the maximum penalty of imprisonment for 25 years; the judge continued:

“[2]   … The second is that the Crown conceded that, despite the temporal breadth of the indictment, the offence was only committed within the much more limited period of 11 December 2014 to 2 January 2015, a period of about three weeks.”

6. Sentencing judgment at [1].

19. That statement was partly wrong. As noted above, the final statement by the applicant, provided by his solicitors to the police, was dated 12 January 2015. The reference to “2 January 2015” might be thought to be a typographical error, except that from 11 December to 2 January is in fact three weeks, as the judge noted. That error, which might have led the judge to understate the seriousness of the offending, probably did not do so because, in dealing with “objective features of the offending”, reference was made to the letter of 12 January 2015 provided by the applicant’s solicitors on 13 January 2015. ^[7]

    7. Sentencing judgment at [11].

20. That the correct date was indeed 12 January was expressly referred to by the Senior Crown Prosecutor who appeared at the sentencing. ^[8] Further, the issue was expressly discussed in the course of the hearing, the relevant passage concluding with the following statement: ^[9]

“HIS HONOUR: So just to be absolutely clear about it, I can, as it were, de facto put on the indictment, mentally, particulars, that is between 11 December 2014 and 12 January 2015?”

The correctness of that statement was confirmed by the prosecutor and by senior counsel for the applicant.

8. Outline of Crown submissions on sentence, dated 26 April 2024, at par 21, under the Heading “Time span of the offending”.

9. Tcpt, 02/05/24, p 11(6).

21. Following the reference in the judgment to the statement of 12 January 2015, the judge continued:

“[12]   Apart from [Mr Assoum] attending the home of a member of the family of the offender, namely Mr Tarek Zahed, the rest of the statement was quite false. It is agreed that Mr Tarek Zahed was written out of the events of the entire evening by the offender in order to protect him. I hasten to add at this stage that there was no evidence placed before me that Mr Tarek Zahed was indeed the murderer, or one of them; having said that, implicit in the offender ‘writing out’ his older brother from the events is the fact that Mr Tarek Zahed had something to do with them.”

Sentencing transcript

22. In the course of submissions on behalf of the applicant, before the sentencing judge, senior counsel noted the various references in the statement of agreed facts in the applicant’s case to the applicant assisting Tarek Zahed. The submission ended with this proposition: ^[10]

“Then, as is noted at the bottom of paragraph 40, we have written him out of the script. This is all in circumstances where, even though the facts were different when your Honour sentenced Tarek Zahed, the material before this Court for this proceeding is that in the Vlangos plea Tarek Zahed was described as the shooter.

HIS HONOUR: What’s that got to do with it in terms of me?

THANGARAJ: It is before your Honour. For the purpose of this proceeding, I’m content for Tarek Zahed to be regarded as the shooter.

HIS HONOUR: How can I accept, based on facts found or agreed in other proceedings, a fact from those proceedings? There is no evidence of Mr Tarek Zahed being the shooter in the proceedings before me, is there?

…

HIS HONOUR: To be clear about it, I’ve been provided with the facts in the proceedings of Mr Vlangos and the proceedings of Mr Tarek Zahed, or at least in the latter my findings of fact. I just assumed that was for the purpose of parity arguments. As things stand, I don’t believe there is any evidence before me that Mr Tarek Zahed was the shooter, or any one of that group if it was more than one. We need to discuss that further, if you wish.

THANGARAJ: That’s why I said the highest I can put it is the Crown’s bundle includes the Vlangos plea and what we know from the agreed facts what their position was on that plea in relation to Mr Vlangos. That’s what I rely on. I am not calling any evidence to say that. I am not asking the Court to accept on the balance of probabilities on further evidence that that’s the situation.”

10. Tcpt, 02/05/24, p 26(40)-27(40).

23. Submissions returned to the agreed proposition that the applicant “wrote Tarek Zahed out of the events of the entire evening in order to protect him”. Counsel referred to this as involving “misguided loyalty to his elder brother”. ^[11] He further noted that the agreed facts prove that, “Tarek Zahed needed protection”. ^[12] That statement evoked the following response: ^[13]

“HIS HONOUR: Well, I don’t necessarily disagree with you … . But – and I appreciate you rely upon that to say, well, this is a misguided loyalty case to some degree. … I guess the importance of what I just said are the last three words ‘to some degree’ because it’s not … it’s not the case before me here today that Tarek Zahed was the murderer. So that it must be … that … protection of his brother may have played some role, but it can’t be the central role in him being an accessory after murder if Tarek Zahed was not the murderer.

THANGARAJ: With respect, your Honour, he doesn’t have to be the shooter, and it shouldn’t be held against us what he ultimately agreed to with the Crown, as far as the charge is concerned. He doesn’t have to be the shooter to be guilty of murder. And the protection of him doesn’t have to be because he was the shooter either. …

But also, on the agreed facts, he was protecting Tarek Zahed. Your Honour doesn’t need to concern yourself as to protect him from what; what charge, what conduct. It was the fact he was protecting him is enough for misguided loyalty.”

11. Tcpt, 17/05/24, p 8(3).

12. Tcpt, p 8(17).

13. Tcpt, p 8(21)-(49).

24. The submissions on that topic ended with the following statement by senior counsel for the applicant: ^[14]

“Now, with respect, that comes within misguided loyalty. And that’s why I am pitching this on the basis of, it doesn’t matter whether or not he is the shooter.”

14. Tcpt, p 11(1).

25. It is difficult to find in these submissions any unqualified proposition that the sentencing judge should accept that Tarek Zahed, on the facts before him, was shown to be the shooter. Further, the submissions appear to concede that he would not find that, and that it did not matter. There are two consequences based on those propositions. The first is that the applicant is seeking to run a different case on appeal, and complains that the judge did not make a finding of fact which was never squarely sought. Secondly, because it was not squarely sought, the significance of Tarek Zahed being the shooter for the purposes of the misguided loyalty proposition was not explored. As counsel conceded, the applicant’s brother could have been convicted of murder even if he were not the shooter. Indeed, it is difficult to see how significant weight could be given to the “misguided loyalty” factor as one in mitigation of sentence when, on the statement accepted at the Vlangos sentencing, the applicant was himself party to the joint criminal enterprise which resulted in the death of Mr Assoum and must have had a strong self-interest in not revealing the truth as he knew it.

Submissions on appeal

26. The written submissions in this Court continued the ambivalence revealed in the transcript on sentencing as to the precise point being made. Thus, the ground of appeal, as stated in the written submissions, was that the sentencing judge erred “in giving less weight to the applicant’s having acted out of a misguided sense of loyalty vis-à-vis his brother on the grounds that there was no evidence that the applicant’s brother had committed the principal offence”. (Emphasis added.) The submissions, after setting out exchanges which occurred in the course of the sentencing hearing and the passage at [29] in the sentencing judgment stated: ^[15]

“It is submitted that his Honour fell into error by, firstly, concluding that there was no such evidence, and, secondly, by reducing the weight to be given to the factor, irrespective of whether the applicant’s brother had been one of the perpetrators of the murder.”

15. Applicant’s written submissions filed 4 December 2024, par 12.

27. The second element was not the point sought to be raised by the ground of appeal. The lack of materiality was reiterated in the following passage: ^[16]

“It is submitted that there is no principle of law, which stands for the proposition that an accessory after the fact, who assists principal offenders out of a misguided sense of loyalty to a third-party, who is not a principal offender, is entitled to less mitigation [than] an accessory after the fact, who assists a principal offender out of a misguided sense of loyalty to that principal offender. The reason for that is simple. The focus must be on the accessory’s motivation and not upon whether the accessory was seeking to protect a principal offender or someone else.”

16. Applicant’s written submissions, par 19.

28. The first sentence in that passage seeks to negate a proposition, but the proposition is not lucidly stated. The final sentence appears to dismiss the significance of who was being protected.

29. Finally, in relation to the ambivalence demonstrated in the submissions, counsel for the applicant stated: ^[17]

“In other words, it is submitted that the applicant’s sense of misguided loyalty was also partly driven by past physical abuse and a culturally induced perception (no doubt also driven by the early physical abuse) that his older brother stood in a position of superiority. Given that state of mind, it is submitted that the objective seriousness of the offence was moderated, irrespective of whether the applicant’s brother had been a perpetrator of the murder or not. The learned sentencing judge’s approach to the question, with respect, focussed on the wrong issue, and his Honour thereby fell into error.”

17. Applicant’s written submissions, par 21.

30. This concluding statement in the submissions as to ground 1 appeared to contradict the complaint identified in the ground, although the erroneous focus of the sentencing judge was not clearly identified.

31. Two propositions may be gleaned from the written submissions in support of the ground, namely that (i) the sentencing judge should have accepted the evidence in the Vlangos statement of facts that Tarek Zahed was the shooter, and (ii) that he should have inferred that fact from other material in the applicant’s own statement of agreed facts. Each of those propositions will be addressed.

32. As to the first, there was no attempt to consider whether, contrary to the clearly stated view of the sentencing judge, it was open to the judge to rely upon a fact stated in agreed facts prepared for a different matter, but introduced, as the judge perceived it, to address issues of parity with co-offenders. The only statement made in the written submissions was the assertion that the court should remember that the Evidence Act 1995 (NSW) does not apply to sentencing proceedings. ^[18] That was true, but how it assisted was less clear. One consequence of that proposition, which is to be found in s 4(2) of the Evidence Act, is that, for example, the principle that evidence tendered for a particular purpose is in for all purposes, unless subject to an express restraint, does not apply. ^[19] Thus, when the statement of agreed facts prepared for the proceedings against Mr Vlangos was tendered, the applicant made no application to the sentencing judge to limit the use to issues of parity, so as to avoid reliance on the statement that he had, together with his brother, “detained…and violently assaulted” Mr Assoum. Nor, at any point in the sentencing hearing, did counsel for the applicant take issue with the judge’s express assumption that it had been tendered “for the purpose of parity arguments”.

    18. Applicant’s written submissions, par 13.

    19. Evidence Act, ss 60, 136.

33. The applicant also submitted:

“14   It would not behoove the Crown to suggest in the proceedings against the applicant that his brother had not been a perpetrator involved in the murder, when it has done so in other proceedings and to do so would be to disadvantage the applicant.”

The recent judgment of this Court in Keen v R ^[20] was said to support that proposition. As was the reasoning in McCosker v R,^[21] where the relevant extrinsic material was a sentencing judgment in relation to a co-offender.

20. [2024] NSWCCA 157 (Yehia J, Wilson and Dhanji JJJ agreeing).

21. [2022] NSWCCA 127 at [46] (Beech-Jones CJ at CL, Adamson and Bellew JJ agreeing).

34. The submission was without substance. On the one hand, it is not uncommon for co-offenders to plead to lesser offences and to be sentenced on the basis of different sets of agreed facts. Secondly, the criticism has no relevance to the ground of appeal.

35. It is trite law that the contents of a statement of agreed facts will apply only between the parties to the agreement. The answer to the applicant’s submissions was succinctly explained in the joint reasons in Likiardopoulos v The Queen:^[22]

“[36]   The first of the appellant's submissions quoted above is also misconceived. As earlier explained, there is no inconsistency between the convictions of John Likiardopoulos and Aydin for manslaughter (or the convictions of Singh and Con Likiardopoulos as accessories after the fact to manslaughter) and the appellant's conviction for murder on the accessorial case. The evidence given at the appellant's trial differed from the facts admitted by the pleas of guilty entered by the other four accused.

[37]   The appellant maintained that it was unfair that the Crown should be permitted to advance a case at his trial that the principal offenders were persons from whom it had chosen to accept pleas of guilty to lesser offences. The Director's acceptance of the proffered pleas of guilty involved an exercise of prosecutorial discretion. As Gaudron and Gummow JJ explained in Maxwell v The Queen,^[23] the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what.”

22. (2012) 247 CLR 265; [2012] HCA 37 (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

23. (1996) 184 CLR 501, 534; [1996] HCA 46.

36. The judge’s uncontradicted assumption that the Vlangos statement of agreed facts was tendered for the purpose of parity submissions and for no other purpose must be accepted. It would have been inappropriate for the judge to have relied on it for any other purpose and certainly not by relying on a selection of those statements which suited the applicant and rejection of those statements which did not.

37. The alternative approach was that the sentencing judge could have inferred that Tarek Zahed was, if not the shooter, at risk of being convicted for the murder of Mr Assoum, as an inference from the applicant’s statement to his brother that he was prepared to spend 20 years in custody to protect his brother, a statement that was said to reflect his knowledge of the seriousness of what his brother did. ^[24] The applicant’s suggestion that he might spend 20 years in custody to protect his brother certainly allows an inference that he would be willing to suffer a conviction and sentence, which would reflect his role in the murder, not merely his refusal to talk. It might further be inferred that, if persuaded to talk, his brother feared that the applicant would nominate him as at least one of the persons directly implicated in the death of Mr Assoum. Taken in isolation, that material does not readily give rise to the inference that Tarek Zahed was the shooter.

    24. CCA Tcpt, 12/02/25, p 7(20).

38. Although the applicant did not give evidence, as the sentencing judge noted he made certain statements which were recorded in a psychological assessment report which did form part of the evidence, to the following effect: ^[25]

“Mr Zahed confirmed that he directly witnessed what happened to [Youssef] and was therefore in a state of acute stress when he arrived at the hospital. He admitted that he had provided false statements to the police in the fear of reprisal from the assailants, knowing that they had killed his best-friend and were therefore capable of inflicting harm, or even death, onto him. He asserted ‘what happened to [Youssef] I don’t want to happen to me or someone I love’.”

25. A Cullen, Psychological Assessment Report, 24 April 2024, par 4.2.

39. The sentencing judge explained in the hearing that he was minded to treat the applicant’s conduct as a product of misguided loyalty, “to some degree”. ^[26] This passage was repeated in the relevant section of the sentencing judgment dealing with the applicant’s subjective circumstances, in the following terms:

“[29]    A further subjective feature with regard to the past is the submission for the offender that he was motivated by a misguided sense of loyalty to his elder brother in committing the offence. I accept that to some degree, based upon the agreed facts, and in particular the intercepted conversations between the two of them. But that factor can only go so far: on the evidence before me in these proceedings, Mr Tarek Zahed was certainly mixed up in the events of the evening in question in some way; but there is no evidence that he was one of the perpetrators of the murder, about which the offender chose repeatedly to lie.”

26. Tcpt, p 8(23).

Conclusions on ground 1

40. Central to the applicant’s case with respect to ground 1 was the proposition that he had acted “with a misguided sense of loyalty” to his older brother. The evidence, taken as a whole, strongly suggests that he was in fear of his elder brother. That is what he said to the psychologist. The judge took this into account appropriately as a factor in mitigation of penalty. Ground 1 is without substance.

Ground 2 – risk of institutionalisation

41. The second ground of appeal complained of a failure on the part of the sentencing judge to make a finding of special circumstances on the basis that there was a risk of the applicant becoming institutionalised. The purpose of such a finding would have been to reduce the length of the period to be spent in custody, thereby extending the period potentially able to be spent on parole beyond the default proportion. ^[27]

    27. Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2).

42. In written submissions provided to the sentencing judge, counsel for the applicant referred to the availability of such an approach, referring to three decisions of this Court. ^[28] The submissions noted that the applicant had spent approximately 16 years and 8 months in custody since 2003, and described him as “in a cross-roads situation”.

    28. R v Lemene [2001] NSWCCA 5; 118 A Crim R 131; Jackson v R [2010] NSWCCA 162; Barrett v R [2011] NSWCCA 213.

43. The sentencing judge was not taken to the authorities referred to in the written submissions, nor was this Court. Each of the cases does in fact support the submission that a risk of institutionalisation may be a basis for a finding of special circumstances, but the matter is one for judgment in the circumstances of the particular case.

44. In the present case, the judge accepted that the applicant had spent a lengthy period in custody and that “he hadn’t spent more than 14 months in the community”. ^[29] In considering the “subjective features” of the case, after referring to his early and continuing history of drug use, the judge stated:

“[23]    Relatedly, he commenced to intersect with the criminal justice system from a very early age. I shall discuss his most serious convictions in more detail in a moment, but the tragic outcome is that this man, aged 30 at the time of the offence and now aged 39, has wasted the vast majority of his adult life in gaol; over the past many years has repeatedly spent no more than 14 months continuously in the community before being incarcerated yet again; and has found himself mixed up in a world in which murder, far from being an outrage of the utmost rarity, is more a part of everyday life, or rather death. And those murders have included a number of members of the family of the offender, including his own brother, unquestionably inflicting further trauma upon him.”

29. Sentencing judgment at [23].

45. The sentencing judge did not ignore the suggested risk of institutionalisation, indeed, he accepted it, but gave it limited weight. Those findings should be read in context:

“[30]    Psychologically, I accept that this man suffers from post-traumatic stress disorder; depression and anxiety; a personality that could be said to be disordered; and a patently destructive dependence on prohibited drugs. All of those conditions have played a role in his offending over the years, including, I accept, some role, albeit indirect, in this offence. I also accept that they may make his time in custody somewhat more difficult than if he did not suffer from them. Having said that, I believe that he has spent so many years in custody as to be well able to cope with it; indeed, if anything, the risk that presents itself now is institutionalisation.”

46. The judge also referred to the submission that “the offender has reached a turning point”,^[30] which he hoped was so, but concluded that he could “go no further than a very guarded optimism that there may be some change in the future”. ^[31]

    30. Sentencing judgment at [31].

    31. Sentencing judgment at [32].

47. As is always the case, and as was noted by Hidden J in Barrett v R, “any reduction of his effective non-parole period must take account of the need for that period to be sufficient to reflect his criminality”. ^[32] In the present case, the sentencing judge expressly addressed the question of special circumstances in the following passage:

[36]    Thirdly, in light of the offender’s age, his repeated periods of incarceration, the gravity of his previous offending, and my caution about the future, I do not find special circumstances, except as discussed in a moment.

…

[39]    Separately, I have taken care to ensure that the ratio between the total continuous non-parole period and the total continuous head sentence does not exceed 75%, and indeed is very slightly below it.”

32. Barrett at [34].

48. The implication of the ground of appeal that a finding of a risk of institutionalisation presumptively leads to some reduction of the non-parole period should not be accepted. While it is correct to say that the sentencing judge did not make a finding of special circumstances by reference to that risk (but only to ensure that the accumulated sentence bore an appropriate relationship to the potential period on parole), there was no error in that approach. For reasons considered in relation to ground 3 (manifest excess) the objective seriousness of the offending permitted little leeway for reduction of the non-parole period. Ground 2 should be rejected.

Ground 3 – manifest excess

49. Senior counsel for the applicant accepted, as was inevitable, that the offence to which the applicant had pleaded was a serious one, carrying a maximum penalty of imprisonment for 25 years. However, counsel submitted that the actual offence was “not objectively serious” ^[33] and involved “low objective gravity”. ^[34]

    33. Applicant’s written submissions, par 36.

    34. Applicant’s written submissions, par 46.

50. Although the applicant’s written submissions in this Court quoted part of the sentencing judgment’s assessment of objective seriousness, it is important to put the passage relied upon in context. After referring to the maximum penalty and the distinction drawn by the Crimes Act 1900 (NSW) between the offences of being an accessory after the fact of murder, and committing that offence with regard to lesser crimes, the judge continued:

“[16]    Thirdly, by any measure, knowing that a murder has been committed and intentionally doing an act or acts to help the principal offender literally to ‘get away with murder’ must be thought of as very reprehensible conduct.

[17]    Having said that, the following points are soundly made for the offender about the objective seriousness of this particular example of the offence: that the plea encompasses only acts that had a tendency to deflect the apprehension of the murderers, not acts that produced that outcome; that some of what the offender had to say could only have possessed that tendency very marginally indeed, such as his lies to his parole officer; that in truth one can safely infer that the police did not believe the offender, bearing in mind that they charged him with a public justice offence on the evening, combined with the inherent incredibility of what he was asserting at all stages; that the offence is based in this case on acts, not silence at any stage on the part of the offender; and, finally, that one cannot be satisfied beyond reasonable doubt that, even if the offender had not committed this offence, the murderers would have been apprehended.

[18]    On the basis of all that: I think that what the offender has done in this case must be seen as a less serious example of a nevertheless serious offence.”

51. The potential range of conduct which may give rise to such an offence, together with the importance of relevant subjective factors, give rise to a wide range of sentences. Reliance on statistics is more than usually unhelpful in the present circumstances.

52. The circumstance most likely to give rise to a lesser sentence is the relationship between the offender and those who committed the murder. The relationship is not infrequently a familial one. There was an element of that relationship in the present case, which founded the reliance before the sentencing judge on what was described as the applicant’s misguided sense of loyalty (to his brother). However, as has been noted, the sentencing judge placed little weight on that factor and more on the fear of retribution (including fear for his own life) as a motivating factor in steps taken to assist the offenders escape justice. Nor was this a case of an innocent bystander with no criminal record for violence allowing a high degree of leniency.

53. The judge dealt in detail with the subjective features drawn from the applicant’s upbringing. ^[35] There is no need to repeat the findings here: in summary, the applicant suffered violence in the home as a boy, did not complete high school, but commenced using alcohol and cannabis at the age of 13, moving onto heroin and amphetamines. The judge described him as intersecting with the criminal justice system “from a very early age”, ^[36] as having “wasted the vast majority of his adult life in gaol” and found himself “mixed up in a world in which murder, far from being an outrage of the utmost rarity, is more a part of everyday life”.

    35. Sentencing judgment at [21]-[23], [27], [30]-[31].

    36. Sentencing judgment at [23]: his first interaction appears to have been at age 15.

54. The applicant’s criminal record contains offences of violence and threatened violence, possession of firearms and threatening injury to a potential witness. The judge made the following findings:

“[27]    I accept that the upbringing of the offender was deprived and profoundly unsatisfactory in many ways, that it predisposed him to criminality from an early age, and that it therefore reduces his moral culpability for this offence to some degree. I also accept that the life of the offender has been distorted by prohibited drugs for many, many years. I further accept that the world in which he has lived has been a frightening, ruthless one in which he has been in mortal danger at times.

[28]    To be weighed against those mitigating aspects are the fact that his criminal record (including how it stood in late 2014) completely disentitles him to leniency; the fact that his conditional liberty when he made himself an accessory after the fact to murder is a serious aggravating feature; and finally, his repeated offences of violence, the possession of the pistol with ammunition, and the egregious threats against the potential witness show that he was a well-established person in the very dangerous world in which he was moving.”

55. There was no doubt that this was a difficult sentencing exercise. It required weighing a disadvantaged background against a shocking criminal record, a “very guarded optimism that there may be some change in the future”,^[37] and the fact that “the offender is well aware of the identity of the person or persons who murdered the deceased, and yet he continues to remain silent”. ^[38] It is possible that some judges would have imposed a heavier sentence; it is not possible to accept that the sentence was manifestly excessive. Ground 3 must be rejected.

    37. Sentencing judgment at [32].

    38. Ibid.

Conclusion

56. It is appropriate, given the nature of the offending, to grant leave to the applicant to appeal against his sentence. However, the appeal must be dismissed.

57. The Court should make the following orders:

1. Grant the applicant leave to appeal against the sentence imposed on him for being an accessory after the fact to murder.

2. Dismiss the appeal.

58. McNAUGHTON J: I agree with Basten AJA.

59. WEINSTEIN J: I agree with Basten AJA.

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Endnotes

Amendments

04 March 2025 - 4/3 - Amend coversheet

Decision last updated: 04 March 2025