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Supreme Court 21 June 2018

R v Ronald Edward Medich (No. 43)

[2018] NSWSC 886

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCE MURDER INTIMIDATION JOINT CRIMINAL ENTERPRISE LIFE SENTENCE NOT IMPOSED

Citation: R v Ronald Edward Medich (No. 43) [2018] NSWSC 886
Court: Supreme Court of New South Wales
Date: 21 June 2018
Judge: Bellew J

Background

On 3 September 2009, Michael McGurk was shot and killed outside his Neutral Bay home as he arrived with his eight-year-old son. The shooter, Haissam Safetli, was waiting for him. Mr McGurk was struck by a single low-velocity .22 calibre bullet to the back of the head and died shortly afterwards. His son witnessed the shooting.

Approximately eleven months later, a man attended the McGurk family home and delivered a threatening message to Mr McGurk's widow, Kimberley, in the presence of her four children. The message demanded she pay her late husband's debts and warned her not to be "a conman like your husband."

Ronald Medich, a former business associate of Mr McGurk, was tried twice for the murder of Mr McGurk and the intimidation of Mrs McGurk. The first jury could not reach a verdict. At the retrial, concluded in April 2018, the jury convicted him on both counts. Bellew J then heard submissions on sentence and delivered this judgment.

  • Whether the murder warranted a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), on the basis that the offender's culpability was so extreme that only a life sentence could meet the community interest in retribution, punishment, protection and deterrence
  • How the parity principle applied, given that several other participants in the offending had already been sentenced
  • Whether the victim impact statements from Mr McGurk's children and widow could be taken into account under s 28(4) of the Sentencing Act as harm done to the community
  • The appropriate sentence for the intimidation offence, including whether a non-parole period was warranted

Decision

Bellew J found that both offences fell at the upper end of the range of objective seriousness. The offender had funded and directed the contract killing of Mr McGurk and separately funded and directed the intimidation of Mrs McGurk. He was, in the court's assessment, the person most responsible for both crimes, having set the criminal enterprise in motion and sustained it financially.

On the question of a life sentence, the Crown ultimately submitted that one should be imposed. The court declined to do so, a conclusion reached in part by reference to the parity principle. Other participants in the offending, including the shooter Safetli, had been sentenced to fixed terms. Imposing a life sentence on the organiser while those who carried out the crimes received lesser fixed sentences raised a parity concern the court found it necessary to address, even though the offender's culpability was the greatest.

Regarding the victim impact statements, Bellew J acknowledged the significant legal debate about whether such statements could properly be taken into account under s 28(4). The court accepted that the harmful impact on the family was profound, describing the effect on Mrs McGurk and her children as "catastrophic." The court noted that s 28(4), introduced in 2014, provides a basis for courts to consider family victim impact statements as reflecting harm to the community, but the precise extent of its operation in cases of this kind required careful consideration.

No mitigating factors were identified. The offender offered no evidence on sentence, expressed no remorse, and had a relevant criminal history. His role as the directing and funding mind behind both offences was treated as a significant aggravating feature.

Orders Made

  • Intimidation of Kimberley McGurk: 4 years and 6 months imprisonment, commencing 27 February 2018 and expiring 26 August 2022. No non-parole period set, as the court found it would serve no purpose.
  • Murder of Michael McGurk: Non-parole period of 27 years, commencing 27 February 2021 and expiring 26 February 2048; additional term of 9 years, expiring 26 February 2057.
  • Total sentence: 39 years imprisonment.
  • The offender will be eligible for parole on 26 February 2048, with the sentence expiring 26 February 2057.

Key Takeaways

  • Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a life sentence for murder is reserved for cases where culpability is so extreme that no other sentence can meet the community interest in retribution, punishment, protection and deterrence. The Supreme Court declined to impose a life sentence here despite finding the offending fell at the upper end of objective seriousness, largely because of parity concerns arising from the sentences imposed on co-offenders.
  • The parity principle operates even where the offender before the court is the most culpable participant. Bellew J recognised that the sentences of those who physically carried out the murder and intimidation had to be weighed when determining the appropriate sentence for the person who directed and funded both.
  • Where an offender occupies the role of organiser and financier in a contract killing, and separately funds an act of intimidation against the victim's family, those facts will be treated as significant aggravating features going to objective seriousness.
  • Section 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), as amended in 2014, provides a statutory basis for courts to receive and consider family victim impact statements as reflecting harm done to the community, though the judgment does not resolve all questions about the section's application in every murder case.
  • The absence of any mitigating evidence, remorse, or co-operation with authorities left the sentencing court with nothing to reduce what was otherwise a sentence reflecting very high culpability.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18 (murder), s 19A (maximum penalties)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 (intimidation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 28(4), 61(1)
- Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW)

Cases:
- Cahyadi v R [2007] NSWCCA 1
- Carruthers v R [2007] NSWCCA 276
- GAS v R (2004) 217 CLR 198
- Green v R; Quinn v R (2011) 244 CLR 462
- Ibbs v R (1987) 163 CLR 447
- Inge v R (1999) 199 CLR 295
- Jonson v R [2016] NSWCCA 286
- Knight v R [2006] NSWCCA 292
- Lowe v R (1984) 154 CLR 606
- Postiglione v R (1997) 189 CLR 295
- R v Abdallah [2015] NSWSC 531
- R v Bae [1999] NSWCCA 290
- R v Bell (1985) 2 NSWLR 466
- R v Berg [2004] NSWCCA 300
- R v Bollen (1998) 99 A Crim R 510
- R v Do (No. 4) [2015] NSWSC 512
- R v Estephan [2014] NSWSC 450
- R v Gattellari; R v Kaminic [2013] NSWSC 1097
- R v Halloun [2014] NSWSC 1705
- R v Hines (No 3) [2014] NSWSC 1273