AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 24 July 2023

R v Karaali (No 10)

[2023] NSWSC 866

Assault & violenceHomicide
PAROLE STATUTORY RATIO

Citation: R v Karaali (No 10) [2023] NSWSC 866
Court: Supreme Court of New South Wales
Date: 24 July 2023
Judge: Campbell J

Background

The offender was convicted by jury of murdering Ross Houllis on 7 February 2020 at Wakeley. The chain of events began when a co-offender, Sami Hamdach, purchased what he believed were counterfeit Apple AirPods from the deceased via Facebook Marketplace. Feeling humiliated, Hamdach devised a plan to confront and physically punish the deceased.

Hamdach recruited the offender to serve as the "muscle" in this plan. A female co-offender, Loubna Kawtharani, acting under Hamdach's direction, lured the deceased to a meeting on Valentine's Day 2020 under the pretence of purchasing AirPods. Once the deceased was within range, the offender delivered a severe physical assault, including punches, kicks, an athletic kick to the head, and stomping, which caused catastrophic and fatal brain injuries.

The sentencing proceedings followed a contested jury trial that concluded on 16 March 2023. The hearing also required consideration of sentences imposed on the two co-offenders and the application of the parity principle.

  • What were the objective facts of the offending, and what was the appropriate level of culpability to be attributed to the offender for sentencing purposes?
  • Whether the offender had an intention to kill, as distinct from an intention to cause grievous bodily harm.
  • Whether the offender's childhood circumstances reduced his moral culpability.
  • The weight to be given to the offender's substance abuse and mental health history as mitigating factors.
  • Whether the parity principle, having regard to the sentences imposed on co-offenders, affected the appropriate sentence.
  • Whether the offender's commission of the murder while on parole was an aggravating factor.
  • Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the additional term.

Decision

Campbell J found that the offender had acted as the principal physical assailant in a joint criminal enterprise designed to inflict retributive violence on the deceased. The assault was prolonged and extreme, and the court found beyond reasonable doubt that the offender had an intention to kill. The court described the underlying motivation as completely irrational in its severity relative to any grievance about the AirPods transaction.

The court considered the offender's childhood circumstances but was not satisfied they reduced his moral culpability to a meaningful degree. Substance abuse and mental health issues were noted but were not found to constitute compelling mitigating factors. The offender showed no remorse, and his overall subjective case was characterised as not compelling.

On the parity principle, the court compared the offender's position to that of Hamdach, who received a non-parole period of 12 years, and Kawtharani, who received a fixed term served by way of an intensive correction order. The court found that the offender's position was materially different, given his role as the direct and lethal physical assailant and his prior criminal history, including that the murder was committed while he was on parole. That parole status was treated as a significant aggravating circumstance.

The court partially accumulated the murder sentence on a pre-existing sentence, commencing the new sentence on 13 July 2020 to account for the totality principle. No special circumstances were found to justify altering the standard statutory ratio between the non-parole period and the additional term.

Orders Made

  • The offender was sentenced to a total term of imprisonment of 28 years.
  • Non-parole period of 21 years, commencing 13 July 2020 and expiring 12 July 2041.
  • Additional term of 7 years, commencing after the expiration of the non-parole period and expiring 12 July 2048.
  • First eligible for release on parole on 12 July 2041.

Key Takeaways

  • Campbell J distinguished carefully between the roles of each co-offender, with the direct physical assailant receiving a substantially longer sentence than the instigator who had pleaded guilty and the accessory who had pleaded guilty to a lesser offence.
  • Committing murder while on parole constitutes a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW) and weighed heavily against the offender in this case.
  • An offender's childhood difficulties and mental health history may be raised in mitigation, but the sentencing court is not required to give them significant weight where the evidence does not establish that they materially reduced moral culpability.
  • Absence of remorse, combined with active conduct during the offence such as denying assistance to the deceased and lying to bystanders, contributed to the court's assessment that the subjective case was not compelling.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard statutory ratio between the non-parole period and the additional term applies unless special circumstances are established; the court found no such circumstances here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 42, 44, 54A, 54B, 54D, 61

Cases
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Hamdach [2023] NSWSC 298
- R v Isaacs (1997) 41 NSWLR 374
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54