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Supreme Court 17 November 2017

R v Koloamatangi; R v Popovic (No 6)

[2017] NSWSC 1631

HomicideFirearms & weapons
CRIMINAL LAW SENTENCE AFTER TRIAL SHOOTING MURDER CONTRACT KILLING

Citation: R v Koloamatangi; R v Popovic (No 6) [2017] NSWSC 1631
Court: Supreme Court of New South Wales
Date: 17 November 2017
Judge: N Adams J

Background

In the early hours of 8 September 2007, Dragan Sekuljica was fatally shot inside a Wollongong nightclub in front of staff and patrons. He was 28 years old. The prosecution's case was that one offender was hired and paid to carry out the killing, and the other directed and funded it as part of a dispute arising from a debt owed to the deceased.

Both offenders were first convicted of murder in 2014 following a trial before RS Hulme AJ. The Court of Criminal Appeal quashed those convictions in 2016, acquitted two co-accused, and ordered a retrial for the remaining two. A second jury convicted both men on 5 September 2017.

The matter before Adams J was sentencing following the retrial. A central complication was that both offenders had already been sentenced for the same offence before the CCA quashed those sentences, which raised specific constraints on the court's discretion.

  • Whether a life sentence should be imposed on the shooter, having regard to the objective gravity of the offence and the purposes of punishment
  • What sentence was appropriate for the organiser and funder of the killing
  • How the court should approach sentencing where offenders had previously been sentenced for the same offence following a conviction that was subsequently quashed
  • Whether parity considerations, given the sentences previously imposed on co-accused who were acquitted on retrial, were relevant to the sentences now imposed

Decision

Adams J found that the shooting was a contract killing carried out for financial reward, placing it at the highest range of objective seriousness for the offence of murder under s 19A of the Crimes Act 1900 (NSW). The shooter attended the nightclub specifically to kill the deceased, collected a firearm for that purpose on the night, and fired a fatal shot in a crowded public venue. His Honour was also satisfied that the shooter was on parole at the time of the offence and had a relevant prior criminal history.

In assessing whether a life sentence was warranted for the shooter, the court applied the test in s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW): whether the level of culpability was so extreme that the community interest in retribution, deterrence, protection, and rehabilitation could only be met by imprisonment for life. Adams J was satisfied that threshold was met, pointing to the premeditated and commercial nature of the killing, the public setting, the offender's parole status at the time, and his criminal history.

For the organiser of the killing, the court imposed a fixed-term sentence rather than life imprisonment. His Honour recognised the high objective seriousness of directing and funding a contract murder but found that the specific criteria for a life sentence were not met in this offender's case. The prior sentences imposed at the first trial formed a relevant constraint on the court's discretion, as required by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which limits a court resentencing after a retrial from exceeding the sentence previously imposed without good reason.

On parity, the court acknowledged the principle but noted that the different roles of the offenders and their different subjective circumstances justified materially different sentences. The acquittals of the two co-accused on retrial did not compel the court to reduce the sentences imposed on those who were again convicted.

Orders Made

  • Tevi Koloamatangi convicted of murder and sentenced to imprisonment for life, commencing at the expiration of his current non-parole period.
  • Zlatan Popovic convicted of murder and sentenced to imprisonment for 34 years, commencing 21 September 2012 and expiring 20 September 2046, with a non-parole period of 26 years expiring 20 September 2038.
  • Both offenders advised of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW), the offence of murder being a "serious violence offence" under that Act.

Key Takeaways

  • A contract killing carried out for financial reward, in a public venue, by an offender on parole, can satisfy the threshold in s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the imposition of a life sentence.
  • Where convictions are quashed and a retrial ordered, s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) constrains the resentencing court's discretion, requiring that the prior sentence be taken into account.
  • The parity principle does not automatically equalise sentences between offenders with materially different roles and subjective circumstances, even where some co-accused were acquitted at retrial.
  • Sufficient objective gravity for a life sentence is assessed by reference to the circumstances of the offending itself; other factors such as criminal history and parole status are relevant to the broader question of whether the community interest in punishment can only be served by life imprisonment.
  • An indemnified witness whose evidence the jury accepted at retrial can form a sufficient foundation for adverse factual findings at sentence, consistent with the standard that facts adverse to an offender must be established beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 19A, 431B(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5C, 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2), 61(1)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Bugmy v The Queen (1990) 169 CLR 525; (2013) 249 CLR 571; [2013] HCA 37
- Lowe v The Queen (1984) 154 CLR 606
- Power v The Queen (1974) 131 CLR 623
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- House v The King (1936) 55 CLR 499
- R v Harris (2000) 50 NSWLR 409
- R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774
- R H McL v The Queen (2000) 203 CLR 452; [2000] HCA 46
- Dean v R [2015] NSWCCA 307; R v Dean [2013] NSWSC 1027
- Giotas v Regina [2008] NSWCCA 287
- King v R (1998) 99 A Crim R 288
- R v Brooks [2012] NSWSC 505
- R v Hannes (2002) 173 FLR 1; [2002] NSWSC 1182