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Supreme Court 5 August 2016

R v Khan

[2016] NSWSC 1073

Assault & violenceHomicideTheft & property
SENTENCE MURDER MANSLAUGHTER CAUSE GRIEVOUS BODILY HARM WOUNDING DESTROY PROPERTY BY FIRE

Citation: R v Khan [2016] NSWSC 1073
Court: Supreme Court of New South Wales
Date: 5 August 2016
Judge: Fullerton J

Background

The offender operated a convenience store on the ground floor of a two-storey terrace in Darling Street, Rozelle. The business was failing: debts were overdue, an attempt to sell had been unsuccessful, and the offender lacked funds to meet ongoing obligations. A term of the lease allowed the offender to terminate if the premises were destroyed by fire.

In the early hours of 4 September 2014, the offender spread petrol through the rear storeroom of the store and ignited it. The resulting explosion and fireball destroyed the convenience store, the three-bedroom apartment above it, and the adjoining phone shop and residence. Three people died: Christopher Noble, who was trapped in his barred bedroom in the apartment above the store, and Bianka O'Brien and her 11-month-old son Jude, who were asleep in the apartment next door. Two other tenants, Todd Fisher and Corey Cameron, escaped with injuries.

The offender was found injured in debris near the rear storeroom shortly after the explosion. He denied responsibility and fabricated a story about armed robbers. Forensic evidence contradicted his account: a service station camera recorded him purchasing approximately 39 litres of petrol in containers two days before the explosion, petrol residue was found on his clothing, and expert fire investigators concluded that 20 to 30 litres of petrol had been dispersed through the premises before ignition.

  • What sentences were appropriate for each of the six offences, including one count of murder, two counts of manslaughter, recklessly causing grievous bodily harm, recklessly wounding, and dishonestly destroying property by fire?
  • How should the individual indicative sentences be structured into a just aggregate sentence that reflected the overall criminality without double-counting?
  • What weight, if any, should be given to mitigating factors such as mental health, prospects of rehabilitation, and conduct in custody?
  • How should the sentence for the property destruction count be calibrated to avoid double-counting conduct already captured in the other counts?

Decision

Fullerton J found that the murder of Christopher Noble was objectively serious. The offender had deliberately set fire to premises he knew were occupied, in circumstances of significant pre-planning, for financial gain and to escape his lease obligations. The spreading of petrol through a confined space with no means of escape for those above constituted conduct of the utmost gravity. The standard non-parole period of 20 years for murder was treated as a meaningful reference point under the framework confirmed in Muldrock v R, and an indicative sentence of 30 years with a non-parole period of 22 years was imposed for this count.

The deaths of Bianka and Jude O'Brien were characterised as manslaughter rather than murder because the offender's awareness of the adjoining occupants, while established, did not satisfy the jury to the requisite standard for murder. Nevertheless, Fullerton J found the manslaughter offences were extremely serious: the offender knew people occupied the neighbouring premises and took no steps to warn them. Each manslaughter count received an indicative sentence of 20 years with a 15-year non-parole period.

The offender showed no genuine remorse. His apologies at the scene were followed by a fabricated account to police, and no expression of remorse was offered in sentencing proceedings. His mental health history and custodial conduct were considered but found not to warrant meaningful mitigation given the gravity of the offending and the absence of rehabilitation prospects.

For the property destruction count, the court imposed a deliberately modest indicative sentence of four years, noting that the conduct underlying that offence was already captured in the sentences for the homicide and injury counts. This approach avoided double-counting while still recording a conviction that reflected the deliberate and financially motivated destruction.

Orders Made

  • Count 1 (Murder of Christopher Noble): indicative head sentence of 30 years, non-parole period of 22 years
  • Count 2 (Manslaughter of Bianka O'Brien): indicative head sentence of 20 years, non-parole period of 15 years
  • Count 3 (Manslaughter of Jude O'Brien): indicative head sentence of 20 years, non-parole period of 15 years
  • Count 4 (Recklessly causing grievous bodily harm to Todd Fisher): indicative head sentence of 5 years, non-parole period of 3 years and 9 months
  • Count 5 (Recklessly wounding Corey Cameron): indicative head sentence of 3 years and 6 months, non-parole period of 2 years and 8 months
  • Count 6 (Dishonestly destroying property by fire): indicative head sentence of 4 years
  • Aggregate sentence: 40 years imprisonment, comprising a non-parole period of 30 years commencing 23 September 2014 and expiring 22 September 2044, with a balance of term of 10 years expiring 22 September 2054
  • First eligible for parole: 22 September 2044

Key Takeaways

  • Where an offender sets fire to premises for financial gain with knowledge that multiple occupants are sleeping inside, the Supreme Court will treat this as among the most serious instances of homicide-by-arson, warranting a lengthy aggregate sentence reflecting marked notional accumulation across counts.
  • Pre-planning, financial motive, and the deliberate creation of conditions that prevented escape were identified as aggravating features of significant weight.
  • A complete absence of remorse, demonstrated by a fabricated account to police followed by no contrition at sentencing, was treated as a factor that denied the offender meaningful mitigation.
  • Where a property destruction offence arises from the same conduct as the associated homicide and injury offences, the sentencing court may impose a modest indicative sentence on the property count specifically to avoid double-counting, while still recording the conviction.
  • The aggregate sentencing approach under the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the court to indicate non-parole periods for counts attracting standard non-parole periods, but Fullerton J went further and indicated non-parole periods for all counts to ensure transparency in the overall sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 19A, 24, 35(2), 35(4), 197(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Boughey v R [1986] HCA 29; 161 CLR 10
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Grant [2002] NSWCCA 243; 131 A Crim R 510
- R v Olig [2002] NSWCCA 249
- Dean v R [2015] NSWCCA 307
- R v Dean [2013] NSWSC 1027