Citation: Regina v Iyman Derbas and Mohamed Rustom [2005] NSWSC 244
Court: Supreme Court of New South Wales
Date: 1 April 2005
Judge(s): Dunford J
Background
Two prisoners at Parklea Correctional Centre were convicted by jury of murdering a fellow inmate, Assad Barakat, and assaulting his cousin Nader Barakat on 4 January 2002. Both victims had recently been remanded in custody on drug charges and, aware they were at risk, had sought help from correctional officers to remain safely housed at Silverwater. Despite their objections, they were transferred to Parklea that morning.
Within minutes of their arrival on the wing, a coordinated attack unfolded. One offender struck the deceased with a pool cue on multiple occasions before it was seized by a prison officer. The other was observed in the final phase of the attack, kicking and ultimately stabbing the deceased, who died almost immediately from abdominal stab wounds. DNA evidence linked one offender to the scene, and a remark made to a prison officer that afternoon further implicated him in the killing.
Both offenders were already serving custodial sentences at the time of the offences. A co-accused was separately tried but the jury could not reach a verdict; a fourth person charged as an accessory after the fact was acquitted.
Legal Issues
- Whether each offender should be characterised as a principal or merely an aider and abettor or participant in a joint criminal enterprise aimed at causing grievous bodily harm (relevant to the degree of culpability for sentencing purposes)
- Whether either or both offenders warranted a life sentence given the objective gravity of the offending
- What head sentence and non-parole period were appropriate, having regard to aggravating and mitigating factors, including the prisoners' ages, backgrounds, prior records, and the circumstances of the offending
- Whether "special circumstances" existed to justify varying the statutory ratio between head sentence and non-parole period under the Crimes (Sentencing Procedure) Act 1999
- How the sentences for murder and assault should interact, and whether they should be served cumulatively on the earlier sentences already being served
Decision
Dunford J rejected the submission that the offenders should be treated only as aiders and abettors or participants in a joint enterprise limited to causing grievous bodily harm. His Honour accepted the evidence of the surviving victim, Nader Barakat, despite submissions that his credibility was undermined by his status as a drug dealer and his agreement to give evidence in exchange for a letter of comfort on his own sentencing. The judge found that evidence was corroborated in several material respects by other witnesses and by the DNA evidence.
The Crown did not press for life sentences, and his Honour declined to impose them. The objective gravity of the offending was very high: it was a planned, group attack on vulnerable prisoners who had sought but been denied protection, carried out in a correctional facility and resulting in a stabbing death. However, the court considered the personal circumstances of each offender, including their relatively young ages, their backgrounds, and other relevant factors, and determined that a determinate sentence was appropriate.
His Honour identified "special circumstances" justifying a variation in the standard ratio between head sentence and non-parole period. Two factors supported this: the more onerous and restrictive conditions under which both offenders were being held in the High Risk Management Unit, and the fact that the new sentences were to be served cumulatively on the sentences they were already serving. The assault sentences were made wholly concurrent with the murder sentences on totality principles.
A notable procedural matter was recorded at the end of the judgment. Following the jury's verdict, the brother of one of the offenders made threatening and abusive remarks to a named juror in open court. Dunford J cited him for contempt, investigated suggestions of improper contact with the juror, found those allegations unsupported, and dealt with the matter separately in related proceedings.
Orders Made
- Each offender sentenced to 24 years imprisonment for the murder of Assad Barakat, with a non-parole period of 17 years
- Derbas: murder sentence deemed to have commenced 24 June 2004; earliest parole eligibility 23 June 2021
- Rustom: murder sentence deemed to have commenced 9 June 2004; earliest parole eligibility 8 June 2021
- Each offender sentenced to a fixed term of 2 years imprisonment for the assault of Nader Barakat, served wholly concurrently with the murder sentence
- Murder sentences backdated to the expiration of the non-parole periods of the offenders' earlier sentences
Key Takeaways
- A planned group attack by prisoners on a vulnerable fellow inmate, resulting in death by stabbing, attracted a 24-year head sentence with a 17-year non-parole period rather than a life sentence, where the Crown did not seek life imprisonment and the court found a determinate sentence appropriate on the facts.
- Confinement in a High Risk Management Unit, with its more onerous and restrictive conditions, was accepted as constituting "special circumstances" under the Crimes (Sentencing Procedure) Act 1999, justifying a departure from the standard head sentence to non-parole ratio.
- Where a new sentence is to be served cumulatively on an existing sentence, that accumulation is also capable of constituting "special circumstances" warranting adjustment of the non-parole period.
- Credibility findings based on a witness's status as a co-offender who received leniency in exchange for giving evidence will not automatically disqualify that witness's account, particularly where it is corroborated by independent evidence including DNA and officer testimony.
- The principle of totality required the assault sentences to run wholly concurrently with the murder sentences, even though the offences were distinct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 21A, and 44
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 No 90 (NSW)
Cases:
- R v Fyffe [2002] NSWSC 751, affirmed [2005] NSWCCA 3
- R v Harris (2000) 50 NSWLR 409
- R v Hore [2002] NSWSC 749, affirmed [2005] NSWCCA 3
- R v Knight [2004] NSWSC 498
- R v Merritt [2004] NSWCCA 19
- R v Omar Rustom [2005] NSWSC 61
- R v Sancar (Ireland J, 19 February 1998)
- R v Way (2004) 60 NSWLR 16