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Supreme Court 5 September 2014

R v Safi

[2014] NSWSC 1208

Homicide
CRIMINAL LAW MURDER SENTENCE JOINT CRIMINAL ENTERPRISE SENTENCE FOLLOWING TRIAL MURDER

Citation: R v Safi [2014] NSWSC 1208
Court: Supreme Court of New South Wales
Date: 5 September 2014
Judge: Bellew J

Background

The offender was convicted by a jury on 29 May 2014 of murdering Mohammad Ayman Abouhait at Whalan, NSW on 25 July 2010. The Crown's case was that the offender and his brother carried out a joint criminal enterprise to assault the deceased, and that the murder was committed in the course of that enterprise. There was no direct evidence of the killing; the Crown relied on circumstantial evidence and alleged admissions made by the offender to various individuals.

The background to the offending involved a series of escalating confrontations. After the offender reported a suspected stolen vehicle to police in June 2010, the deceased began attending the offender's premises demanding money or cars as a supposed debt. During one of those visits, the deceased produced a firearm, threatened the offender, and took a gold chain from him. The offender subsequently told associates he intended to "fix" the matter himself rather than involve police.

The deceased was briefly arrested in the early hours of 25 July 2010 after being found attempting to break into the offender's premises. Upon his release that same day, he telephoned the offender saying he was coming to collect the cars. The deceased was murdered later that day.

  • What were the appropriate findings of fact regarding the circumstances of the offending, consistent with the jury's verdict?
  • How should the standard non-parole period of 20 years for murder be applied in the context of this offence's objective seriousness?
  • What weight should be given to the threatening and intimidating behaviour of the deceased in the lead-up to the offending?
  • How should the offender's maintenance of his innocence and absence of remorse affect findings on rehabilitation prospects?
  • What sentence and non-parole period were appropriate given all objective and subjective factors?

Decision

Bellew J found beyond reasonable doubt that the offender had been subjected to sustained threatening behaviour by the deceased over several weeks, including being threatened with a firearm and having property taken from him. Despite this, the offender had expressed a clear intention to deal with the matter personally rather than through police channels. His Honour assessed the objective seriousness of the offence as below the midrange, given the contextual behaviour of the deceased, although the offence remained extremely serious.

The court considered the standard non-parole period of 20 years as a guidepost rather than a fixed benchmark, consistent with the High Court's approach in Muldrock v R (2011) 244 CLR 120. After weighing all aggravating and mitigating factors, including the absence of prior violent offending and the circumstances that preceded the killing, Bellew J arrived at a sentence below the standard non-parole period.

On the question of remorse and rehabilitation, the offender had maintained his innocence throughout and expressed no remorse for the offending. His Honour acknowledged that a finding of good rehabilitation prospects is not automatically precluded simply because an offender declines to acknowledge guilt after conviction. Drawing on Court of Criminal Appeal authority, the court balanced the absence of remorse against the offender's relatively young age (37), stable employment history, absence of violent prior offending, and the support of family members. Bellew J was ultimately satisfied that the offender had generally good prospects of rehabilitation and was unlikely to reoffend.

Orders Made

  • The offender is sentenced to a non-parole period of 17 years imprisonment, commencing 30 October 2012 and expiring 29 October 2029.
  • An additional term of 5 years and 8 months imprisonment, commencing 30 October 2029 and expiring 29 June 2035.
  • Total sentence: 22 years and 8 months imprisonment.
  • The offender will be eligible for parole on 29 October 2029, with the sentence expiring on 29 June 2035.
  • The sentence was backdated to the date of arrest, 30 October 2012.

Key Takeaways

  • The Supreme Court confirmed that the standard non-parole period for murder (20 years) operates as a legislative guidepost under Muldrock v R, not a fixed starting point, and must be adjusted to reflect the full range of aggravating and mitigating factors in the individual case.
  • Contextual threatening behaviour by a deceased victim, including being threatened at gunpoint and having property taken, can bear on the court's assessment of objective seriousness, even where such behaviour does not amount to a complete defence.
  • Under established Court of Criminal Appeal authority, an offender who maintains innocence after conviction is not automatically denied a finding of good rehabilitation prospects, but the absence of remorse remains a significant factor that must be weighed carefully against other subjective circumstances.
  • Sufficient positive factors, including youth, stable employment, absence of violent prior offending, and family support, can collectively support a finding of good rehabilitation prospects even without expressed remorse.
  • A life sentence under section 61(1) of the Crimes (Sentencing Procedure) Act 1999 is reserved for cases where culpability is so extreme that only that sentence can satisfy the community interest in retribution, punishment, protection, and deterrence; it was not sought or imposed here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 61(1)
- Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW)

Cases:
- Muldrock v R (2011) 244 CLR 120
- R v Isaacs (1997) 41 NSWLR 374
- R v Previtera (1997) 94 A Crim R 76
- R v Bollen (1998) 99 A Crim R 510
- Alseedi v R [2009] NSWCCA 185
- Ali v R [2010] NSWCCA 35
- BP v R [2010] NSWCCA 159
- R v MAK; R v MSK [2006] NSWCCA 381