Citation: R v Popovic; R v Hristovski; R v Bubanja; R v Koloamatangi [2014] NSWSC 1725
Court: Supreme Court of New South Wales
Date: 12 December 2014
Judge: RS Hulme AJ
Background
In the early hours of 8 September 2007, Dragan Sekuljica was shot multiple times outside and inside the Splashes nightclub at the Novotel in Wollongong. The gunman pursued the victim from the street back into the nightclub, where a fatal shot was fired at close range to the back of the victim's head. An unarmed security guard was also wounded in the arm during the attack.
Four accused stood trial for murder and for shooting the security guard with intent to murder. A jury found all four guilty of murder in May 2014 but acquitted them on the second charge.
The matter came before RS Hulme AJ for sentencing. The prosecution case rested on three principal elements: the evidence of two indemnified Crown witnesses (referred to by pseudonyms Peter Taylor and Johnny Radz), mobile phone tower records compiled as Exhibit G, and admissions attributed to various accused.
Legal Issues
- What sentence was appropriate for each of the four offenders, having regard to their individual roles in a joint criminal enterprise to commit murder?
- How should the court treat the evidence of indemnified Crown witnesses who had criminal histories and credibility concerns?
- Whether the killing was a contract killing and, if so, what weight that carried in sentencing.
- How the principle of sentencing parity should apply where offenders had materially different roles and subjective circumstances.
Decision
His Honour was satisfied that the offender identified as the gunman had acted as a paid contract killer, shooting the victim in return for money arranged through the joint enterprise. Phone records strongly corroborated this conclusion, showing the gunman travelling between Sydney and Wollongong on the night in question, with calls to and from co-accused in the immediate period around the shooting, followed by the delivery of money.
The court approached the evidence of both indemnified witnesses with considerable caution. Both had criminal histories, both had financial incentives from a police reward, and both gave evidence containing inconsistencies. Nevertheless, the court accepted key parts of their accounts where they were independently corroborated, particularly by the mobile phone records.
His Honour found that the principal offender's role was the most serious. He had carried out the killing with great determination, pursuing the victim into a crowded nightclub after failing to kill him outside. The court characterised this as a contract killing, placing it among the gravest categories of murder. The remaining offenders had participated in the joint criminal enterprise in varying degrees, including arranging the contract, providing a firearm, and facilitating the gunman's movements.
On parity, the court acknowledged the principle but concluded that the materially different roles and individual circumstances of the offenders justified different sentences rather than uniform terms.
Orders Made
- Koloamatangi: Life imprisonment, commencing 1 June 2023.
- Bubanja: Non-parole period of 26 years commencing 1 February 2014, with a further term of 8 years; eligible for parole 1 February 2040.
- Popovic: Non-parole period of 26 years commencing 21 September 2012, with a further term of 8 years; eligible for parole 21 September 2038.
- Hristovski: Non-parole period of 22 years commencing 25 July 2014, with a further term of 7 years; eligible for parole 25 July 2036.
Key Takeaways
- Contract killings were treated by the Supreme Court as falling among the most serious categories of murder, warranting the imposition of a life sentence for the gunman.
- Where indemnified Crown witnesses have criminal histories, financial incentives, and credibility concerns, a sentencing court must approach their evidence with very considerable caution, though it may accept corroborated portions.
- Mobile phone tower records, compiled as a chronological exhibit, can constitute strong independent corroboration of witness accounts about movements and communications before and after an offence.
- The parity principle in sentencing does not require identical sentences where co-offenders played materially different roles in a joint criminal enterprise and have different subjective circumstances.
- A finding that a co-offender participated in a contract killing as part of a joint enterprise, without being the shooter, does not place that offender in the same category of moral culpability as the person who personally carried out the killing for payment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW)
Cases cited: No specific cases were cited in the portions of the judgment provided.