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Supreme Court 17 December 2021

R v Sultani; R v Munshizada; R v Baines; R v Danishyar

[2021] NSWSC 1654

Homicide
CRIME SENTENCE MURDER THREE MURDERS ON SEPARATE OCCASIONS PREMEDITATION AND E XTENSIVE PLANNING CONTEXT OF O RGANISED CRIMINAL ACTIVITY

Citation: R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654
Court: Supreme Court of New South Wales
Date: 17 December 2021
Judge: Fagan J

Background

Four offenders were sentenced for roles in three separate murders committed in New South Wales in 2016. The victims were Michael Davey (killed at Kingswood on 30 March 2016), Mehmet Yilmaz (killed at St Marys on 9 September 2016), and Pasquale Barbaro (killed at Earlwood on 14 November 2016). The offending occurred in the context of organised criminal activity and involved premeditation and extensive planning.

Two of the offenders, Sultani and Munshizada, faced sentencing for all three murders. Sultani pleaded guilty to each murder (the Yilmaz and Barbaro murders in March 2019, the Davey murder in December 2019). Munshizada contested all charges and was found guilty by separate juries for each murder between March 2020 and May 2021. Sentencing of Sultani had been deferred until after the trials of his co-accused so that the court could calibrate sentences to reflect each person's individual role.

The remaining two offenders, Baines and Danishyar, were sentenced only in relation to the Barbaro murder. Both had been acquitted of the Yilmaz murder. Baines was convicted by jury as a principal. Danishyar was convicted both as an accessory before the fact to the Barbaro murder (that is, he assisted in facilitating it before it occurred) and as an accessory after the fact (he helped the principals evade detection and apprehension afterwards).

  • Whether each murder, as committed by each individual offender, engaged s 61(1) of the Crimes Act 1900 (NSW), which requires a court to impose a mandatory life sentence where the level of culpability is so extreme that no lesser sentence can satisfy the community interests in retribution, punishment, community protection, and deterrence.
  • Whether, even if s 61(1) was engaged, any subjective circumstances warranted the exercise of discretion under s 21(1) of the Crimes Act to impose a lesser, determinate sentence.
  • What sentences were appropriate for Baines as a principal to one murder, and for Danishyar as accessory before and after the fact, including whether the standard non-parole period for murder applied to Danishyar's accessory convictions.
  • How to apportion sentences across co-offenders to reflect the differing roles each played.

Decision

Fagan J applied the two-stage test confirmed by the Court of Criminal Appeal in Rogerson v R; McNamara v R [2021] NSWCCA 160 and CC v R; R v CC [2021] NSWCCA 71. At the first stage, the court assessed each offender's level of culpability by reference to the objective seriousness of the offence, the offender's motive and intention, and any personal circumstances bearing on culpability. At the second stage, where the first stage was satisfied, the court considered subjective factors including antecedents, remorse, rehabilitation prospects, and (for Sultani) guilty pleas, to determine whether discretion should be exercised to impose a determinate sentence instead.

For both Sultani and Munshizada, Fagan J was satisfied that s 61(1) was engaged in respect of each of the three murders. The offending was premeditated, extensively planned, and carried out in the context of organised criminal activity. The court found no subjective circumstances that warranted departure from the mandatory life sentence in either case. Each was sentenced to three concurrent terms of life imprisonment.

For Baines, who was convicted as a principal in only the Barbaro murder, the court imposed a determinate sentence. The court treated his role and culpability as serious but not reaching the threshold under s 61(1) that would compel a life sentence, and a total sentence of 36 years (27-year non-parole period) was imposed.

Danishyar's position involved distinct legal considerations. The Court of Criminal Appeal's decision in Aoun v R [2007] NSWCCA 292 confirmed that the standard non-parole period applicable to murder does not apply to a conviction as an accessory before the fact. For his accessory before the fact conviction, Danishyar received a sentence of 15 years (11-year non-parole period). For his accessory after the fact conviction, carrying a maximum of 25 years under s 349(1) of the Crimes Act, he received a fixed term of 2 years. Both sentences were back-dated to November 2016.

Orders Made

Sultani: Three concurrent life sentences for the murders of Davey, Yilmaz, and Barbaro, each commencing 29 November 2016.

Munshizada: Three concurrent life sentences for the murders of Davey, Yilmaz, and Barbaro, each commencing 29 November 2016.

Baines: For the murder of Barbaro, non-parole period of 27 years commencing 29 November 2018 (expiring 28 November 2045), balance of term of 9 years (expiring 28 November 2054). Notified that the Crimes (High Risk Offenders) Act 2006 (NSW) applies.

Danishyar:
- Accessory before the fact to Barbaro murder: non-parole period of 11 years commencing 29 November 2016 (expiring 28 November 2027), balance of term of 4 years (expiring 28 November 2031).
- Accessory after the fact to Barbaro murder: fixed term of 2 years commencing 29 November 2016 (expiring 28 November 2018).
- Notified that the Crimes (High Risk Offenders) Act 2006 (NSW) applies.

Key Takeaways

  • Section 61(1) of the Crimes Act 1900 (NSW) operates as a two-stage test: the court first assesses whether the offender's level of culpability is so extreme that only a life sentence can satisfy the community's interests in retribution, punishment, protection, and deterrence; if satisfied, a residual discretion remains to impose a lesser sentence where subjective circumstances justify it.

  • Premeditated, planned murders carried out in the context of organised criminal activity can engage s 61(1) and, absent compelling subjective circumstances, result in mandatory life sentences.

  • The standard non-parole period prescribed for murder under the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to a conviction as an accessory before the fact to murder, as confirmed in Aoun v R [2007] NSWCCA 292.

  • Sentencing of one offender may be deferred pending the trials of co-accused so that individual roles can be properly assessed and sentences calibrated accordingly.

  • Where multiple offenders are sentenced for the same series of offences, the court applies careful individual assessment: the same underlying facts produced life sentences for some offenders and determinate sentences for others, depending on each person's level of participation and culpability.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 346, 349(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 21(1)
- Court Suppression and Non-publication Orders Act 2007 (NSW)
- Surveillance Devices Act 2007 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Aoun v R [2007] NSWCCA 292
- CC v R; R v CC [2021] NSWCCA 71
- Ibbs v The Queen (1987) 163 CLR 447
- R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
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