AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 9 August 2013

R v Safetli

[2013] NSWSC 1096

HomicidePublic order & justice offences
SENTENCE GUILTY PLEAS OFFENCE OF MURDER OFFENCE OF INTIMIDATION EXECUTION STYLE MURDER FOR PAYMENT

Citation: R v Safetli [2013] NSWSC 1096
Court: Supreme Court of New South Wales
Date: 9 August 2013
Judge(s): Latham J

Background

The offender was sentenced following guilty pleas to the murder of Michael McGurk and to a charge of intimidation. McGurk was killed on 3 September 2009 in circumstances involving a contract arranged through a network of associates connected to prominent property developer Ronald Medich. The offender was recruited by co-offender Fortunato Gattellari to carry out the murder in exchange for a payment of $300,000.

The offender had conducted surveillance on McGurk before being engaged to kill him. He ultimately shot McGurk in what the court described as an execution-style killing. A separate intimidation offence arose from a plan, discussed before the murder, to threaten McGurk's widow into settling her husband's outstanding legal disputes with Medich.

The offender had pleaded guilty in the Local Court and maintained that plea in the Supreme Court. Critically, he had also provided substantial past and future assistance to police, which was a significant factor in the sentencing exercise.

  • What discount applied to the sentences by reason of the utilitarian value of the guilty pleas?
  • Whether the offender was entitled to an additional "Ellis discount" for volunteering information to police before charges were laid
  • What weight to give the offender's past and future assistance to police under the relevant sentencing framework
  • Whether special circumstances existed to justify altering the standard ratio between the non-parole period and the balance of term
  • How the sentences for the two offences should be structured given the need for some accumulation and the principle of totality

Decision

Latham J held that the offender was entitled to the maximum discount for the utilitarian value of his guilty pleas and the contrition inherent in them. The court assessed the murder as attracting, but for the pleas and assistance, a sentence of 22 years' imprisonment, and the intimidation offence a sentence of 20 months.

On the question of an Ellis discount (a further reduction available where an offender volunteers information to authorities before being charged), the court declined to apply it. The offender had provided information only after he became aware he was under investigation. That calculated decision, made to obtain the best outcome rather than from spontaneous contrition, did not meet the threshold established in R v Ellis.

The offender's assistance to police was described as being of a very high order, both past and future. That assistance produced a very substantial reduction in the sentence otherwise warranted: the murder sentence fell from 22 years to 9 years after applying both the guilty plea discount and the assistance reduction. The intimidation sentence was reduced to 12 months and then structured as a fixed term of 6 months given the required degree of accumulation.

On special circumstances, the court declined to make a finding based on the offender's subjective circumstances, including the onerous conditions of protection custody and his prospects of rehabilitation. However, special circumstances were found on a structural ground: accumulating the murder sentence on the intimidation sentence would produce an aggregate non-parole period disproportionate to the aggregate term. The court adjusted the non-parole period accordingly, while noting that any lesser period in custody would be unreasonably disproportionate to the gravity of the offences.

Orders Made

  • Intimidation offence (pursuant to s 166 certificate): convicted and sentenced to a fixed term of 6 months, commencing 13 October 2010, expiring 12 April 2011.
  • Murder of Michael McGurk: convicted and sentenced to a non-parole period of 6 years and 6 months, commencing 13 April 2011, expiring 12 October 2017; balance of term expiring 12 April 2020.
  • Eligible for release on parole: 13 October 2017.

Key Takeaways

  • An Ellis discount is not available where an offender approaches police only after becoming aware they are under investigation; the reduction requires a genuinely spontaneous act of contrition, not a calculated tactical decision.
  • Substantial cooperation with authorities, assessed as being of a very high order, can produce a dramatic reduction in an otherwise severe sentence, even for an execution-style contract murder.
  • Special circumstances can be established on structural grounds relating to totality and proportionality, even where the offender's personal circumstances do not independently justify a departure from the standard non-parole period ratio.
  • The Supreme Court assessed the offender's moral culpability as only marginally less than that of the principal organiser, Gattellari, despite the offender's prior good character and positive character evidence.
  • Where two offences require some accumulation of sentences, the court must ensure the aggregate non-parole period remains proportionate to the aggregate term, and may find special circumstances for that purpose alone.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- R v Ellis (1986) 6 NSWLR 603
- Lewins v R [2007] NSWCCA 189
- R v King (1998) 99 A Crim R 288