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Supreme Court 1 April 2014

R v Neramsn SAFAR

[2014] NSWSC 376

Homicide
CRIMINAL LAW SENTENCE MURDER EXTENDED JOINT CRIMINAL ENTERPRISE NO ISSUE OF PRINCIPLE PLEA OF GUILTY

Citation: R v Neramsn SAFAR [2014] NSWSC 376
Court: Supreme Court of New South Wales
Date: 1 April 2014
Judge(s): Rothman J

Background

The offender pleaded guilty to the murder of Colin Wick, who was shot dead at his home in Canley Heights on 23 July 2011. The offender and two others had travelled to the address intending to commit a break, enter and steal. The offender had been told the premises would be unoccupied.

The offender's criminal liability for murder was not based on any act or intention of his own. He neither fired the weapon nor intended any violence. Liability was imposed through the doctrine of extended joint criminal enterprise, which holds a participant responsible for the foreseeable criminal acts of co-offenders carried out in pursuit of a common unlawful purpose.

The offender's awareness that a firearm was present arose only when he alighted the vehicle at the scene. At that point, affected by marijuana and ice, he contemplated the possibility that his co-offender might form an intention to kill, but proceeded regardless.

  • What was the appropriate sentence for a murder conviction arising from extended joint criminal enterprise, where the offender had no intention to commit violence and did not fire the weapon?
  • What weight should be given to a guilty plea entered on the day of trial, where negotiations over agreed facts had been ongoing since January 2014?
  • Were there special circumstances justifying a longer-than-standard parole period to support rehabilitation?

Decision

Rothman J placed the objective seriousness of the offence at the lowest end of the range for murder. Although the offender participated in conduct that was potentially dangerous and lethal, he had no intention to injure the deceased, did not commit the act causing death, and did not plan or organise the fatal conduct. The aggravating features included the use of a weapon, offending in company, the offence occurring in the victim's home, and some limited planning for the original robbery.

The judge accepted that the plea, while entered on the day of trial, carried more than minimal utilitarian value. Its prior notification and timing avoided a complex application for separate trials, resolved admissibility issues between co-accused, and saved approximately three weeks of a six-week trial. The delay in entering the plea was also attributable to the time required for the offender's counsel to explain the legally complex doctrine of extended joint criminal enterprise. A discount of approximately 12.5 per cent was applied.

A finding of special circumstances was made, primarily to allow for a longer period of supervised release given the offender's drug addiction. The court accepted the psychologist's assessment that good prospects for rehabilitation existed, but noted that addressing addiction in custody would require extended community supervision post-release. The judge identified a pre-discount head sentence of 18 years, reduced to reflect the guilty plea.

Orders Made

  • The offender was convicted of murder.
  • Sentenced to a non-parole period of 11 years, commencing 17 January 2012 and concluding 16 January 2023.
  • Remainder of term of 4 years and 9 months, concluding 16 October 2027.
  • First eligible for parole on 16 January 2023.

Key Takeaways

  • Under the doctrine of extended joint criminal enterprise, a participant in a planned robbery can be convicted of murder even where they lacked any intention to cause harm and did not perform the act causing death, provided they contemplated the real possibility that a co-offender might kill.
  • Objective seriousness in a murder conviction can fall at the lowest end of the range where the offender had no violent intent, did not cause the death, and did not plan the fatal act, although this does not diminish the gravity of the loss.
  • A late guilty plea can still attract a meaningful discount where its timing and prior notification produce concrete utilitarian benefits, including savings in trial time and avoidance of complex procedural disputes.
  • Special circumstances justifying a departure from the standard non-parole period can arise from an offender's need for extended post-release supervision to address serious drug addiction and to support rehabilitation.
  • In applying the consistency principle, Rothman J drew comparisons with his own earlier decision in R v Smith [2012] NSWSC 1565, while identifying factual distinctions that informed a higher sentence than that imposed in the earlier case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v Graham Keys Smith [2012] NSWSC 1565