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Supreme Court 23 June 2014

R v Marwan JUBRAEEL

[2014] NSWSC 838

Homicide
CRIMINAL LAW SENTENCE MURDER JURY VERDICT EXTENDED JOINT CRIMINAL ENTERPRISE NO ISSUE OF PRINCIPLE

Citation: R v Marwan Jubraeel [2014] NSWSC 838
Court: Supreme Court of New South Wales
Date: 23 June 2014
Judge(s): Rothman J

Background

The offender was convicted by jury of the murder of Colin Wick, who died from a single gunshot wound 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, each dressed in dark clothing and wearing balaclavas and gloves. No one was expected to be home.

One of the co-offenders was armed. The court found the offender did not know a gun was present until it was drawn by the shooter, just prior to the shooting. The deceased pulled back a curtain to look outside, and the co-offender immediately discharged the weapon once through the glass doors, fatally wounding the deceased.

The offender's criminal liability for murder rested entirely on the doctrine of extended joint criminal enterprise, meaning his guilt arose from participation in the group's conduct rather than from any personal act or intention to cause harm.

  • Whether the principles of extended joint criminal enterprise supported the murder conviction, and at what level of culpability the offender should be sentenced
  • What weight to give the offender's subjective circumstances, including intellectual disability, traumatic background, substance dependence, and prospects of rehabilitation
  • How to achieve parity with the sentence imposed on a co-offender who had pleaded guilty to the same murder
  • How to fix an appropriate non-parole period relative to the standard non-parole period of 20 years for murder

Decision

Rothman J accepted the jury's verdict but made careful findings about the nature and degree of the offender's culpability. The court was not satisfied beyond reasonable doubt that the offender knew of the gun before it was drawn. However, consistent with the jury's verdict, the court found he became aware of the gun at a point when he could have withdrawn from the enterprise but did not. His liability for murder therefore flowed from extended joint criminal enterprise, not from any personal intention to harm or kill.

The court placed the offending at the lowest end of culpability within the very serious range associated with murder. The offender had no intention to harm the deceased, committed no act that caused death, and had only very limited time to withdraw once he became aware of the gun. The court also noted that the Crown had not proved the shooter intended to kill or cause grievous bodily harm; rather, the shooter acted with reckless indifference to human life.

On subjective matters, the court gave weight to several significant factors. The offender had a traumatic childhood marked by religious persecution in Iraq, exposure to frequent violence, and a strict and physically punitive father. Psychological testing placed him in the intellectually disabled range, at the lowest one percentile for verbal comprehension and perceptual reasoning. He had developed a serious drug dependency, including methyl-amphetamine use, but had remained drug-free since his arrest. The court assessed his prospects of rehabilitation as sound, particularly if he continued to abstain from drugs and alcohol.

On parity, the court compared the sentence with that imposed on a co-offender (R v Neramsn Safar [2014] NSWSC 376) who had pleaded guilty and received a 12.5% discount for that plea. The court accounted for the differences between the two offenders, including the plea discount and their respective roles, in arriving at the sentence for the offender.

Orders Made

  • The offender was convicted of the murder of Colin Wick on or about 23 July 2011 at Canley Heights
  • Sentenced to a non-parole period of 12 years' imprisonment, commencing 11 January 2012 and concluding 10 January 2024
  • Remainder of term of 5 years' imprisonment, concluding 10 January 2029
  • Total sentence: 17 years' imprisonment
  • First eligible for release on parole on 10 January 2024
  • Form 1 offences (possession of a prohibited weapon, cannabis and methyl-amphetamine) taken into account

Key Takeaways

  • Extended joint criminal enterprise can ground a murder conviction even where the offender had no intention to harm the victim, did not carry or use a weapon, and only became aware of a co-offender's gun moments before the fatal shot was fired.
  • Culpability under extended joint criminal enterprise exists on a spectrum: the Supreme Court placed this offender at the lowest end of that spectrum within the inherently serious category of murder, reflecting the very brief window he had to withdraw and his complete absence of harmful intent.
  • A standard non-parole period of 20 years for murder functions as a guidepost rather than a fixed minimum, and a court may depart below it where the offender's culpability and subjective circumstances justify doing so.
  • Intellectual disability, a history of childhood trauma and exposure to violence, and substance dependence at the time of offending are all factors a sentencing court may weigh in assessing moral culpability and rehabilitation prospects, even where they do not excuse the conduct.
  • Parity requires a sentencing court to account for differences between co-offenders, including whether one pleaded guilty and received a plea discount, when calibrating the sentence for an offender who was convicted after a trial.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v Graham Keys Smith [2012] NSWSC 1565
- R v Neramsn Safar [2014] NSWSC 376