Citation: R v Keleklio; R v Sinai [2022] NSWSC 62
Court: Supreme Court of NSW
Date: 25 February 2022
Judge: R A Hulme J
Background
On 23 January 2018, a 65-year-old solicitor was shot three times and killed as he sat with friends outside a café in Bankstown's central shopping district. The shooter approached from behind and fired a .45 calibre handgun in broad daylight. The victim died at the scene.
The Crown case was that the shooting was carried out pursuant to a joint criminal enterprise. The shooter was the first offender; the second offender was alleged to have coordinated the enterprise, with both men's movements traced before and after the murder through CCTV footage and telephone records. The victim had connections to persons involved in the illicit drug trade, and the evidence suggested the murder was carried out to serve the criminal objectives of one or more third parties, though the precise motive could not be definitively established.
The first offender pleaded guilty approximately one month before trial. The second offender was found guilty by a jury on 28 June 2021. Both came before the court for sentence.
Legal Issues
- What was the appropriate starting point for sentence, and did both offenders share the same level of culpability despite their different roles?
- What weight should be given to each offender's late plea of guilty, mental health history, and cognitive capacity in mitigation?
- What aggravating factors applied, including the planned and organised nature of the offending and the use of a firearm in a public place?
- How should the parity principle apply when sentencing co-offenders in a joint criminal enterprise?
- Did special circumstances exist to justify a variation in the ratio between the non-parole period and the balance of term?
Decision
Objective seriousness and parity
The court assessed the murder as above the mid-range of objective seriousness. It was a planned and organised execution-style killing carried out in a busy public space with a firearm. The court found that, despite the offenders' different roles (one as shooter, one as organiser of the enterprise), both bore the same level of culpability. Accordingly, the court adopted the same starting point of 30 years for both offenders before applying individual mitigating factors.
Aggravating factors
Several statutory aggravating factors were established. The offending was planned and organised. A firearm was used. The murder caused substantial harm, including catastrophic loss to the victim's family as reflected in victim impact evidence. The court also emphasised general deterrence in response to the serious affront represented by gun violence in a public place.
Mitigating factors: plea of guilty
The first offender's plea of guilty, entered approximately one month before trial, attracted some utilitarian discount. However, the court reduced the weight given to that discount because no acceptable justification for the delay in entering the plea was established. The plea resulted in a reduction in the starting sentence from 30 years to 27 years.
Mitigating factors: mental health and cognitive capacity
Both offenders had mental health histories, including extensive anxiety and depression. The first offender also had a low level of intellectual capacity. The court accepted these as mitigating factors. However, the court found that the mental conditions were not causally connected to the offending. While this limited the extent to which the conditions reduced the sentence, the court acknowledged that they also reduced the emphasis appropriately placed on general deterrence, retribution, and denunciation. Both offenders were assessed as unlikely to reoffend, and genuine remorse was considered in each case.
Orders Made
- The second offender (convicted by jury) was sentenced to a total term of imprisonment of 27 years, comprising a non-parole period of 20 years and 3 months and a balance of term of 6 years and 9 months, commencing 30 May 2019, with eligibility for parole on 29 August 2039.
- The first offender (plea of guilty) was sentenced to a total term of imprisonment of 27 years, comprising a non-parole period of 20 years and 3 months and a balance of term of 6 years and 9 months, commencing 13 February 2018, with eligibility for parole on 12 May 2038.
- The starting point for both sentences, absent individual mitigating factors, was 30 years.
Key Takeaways
- In a joint criminal enterprise, parity principles may require the same sentencing starting point for co-offenders even where their roles differ, provided their overall culpability is assessed as equivalent.
- A late plea of guilty carries reduced utilitarian value where the offender provides no acceptable justification for the delay in entering it.
- Mental illness and low cognitive capacity can operate as mitigating factors in a murder sentence without being causally connected to the offending, though the absence of a causal connection limits their mitigating weight.
- Where an offender's cognitive capacity and mental condition are relevant, the sentencing court may reduce the emphasis on general deterrence, retribution, and denunciation to reflect those circumstances, even when those factors would otherwise weigh heavily in a case involving public gun violence.
- The Supreme Court confirmed that the planned and organised nature of a public, execution-style killing using a firearm places the offending well above the mid-range of objective seriousness for murder, with corresponding weight given to general deterrence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) (murder provisions, implied)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (implied, standard non-parole period and aggravating/mitigating factors)
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases
- Ah Keni v R [2021] NSWCCA 263
- James v R [2021] NSWCCA 23
- R v Fidow [2004] NSWCCA 172