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Supreme Court 8 November 2024

R v Price; R v Rahim; R v Taufahema

[2024] NSWSC 1419

Assault & violenceHomicideTheft & property
CRIME SENTENCE JOINT CRIMINAL ENTERPRISE MURDER MANSLAUGHTER ASSAULT WITH INTENT TO ROB IN COMPANY

Citation: R v Price; R v Rahim; R v Taufahema [2024] NSWSC 1419
Court: Supreme Court of New South Wales
Date: 8 November 2024
Judge: McNaughton J

Background

In the early hours of 7 December 2019, two men broke into a home at Condell Park and stabbed the 29-year-old resident, Luke Lembryk, five times. He died shortly afterwards in his mother's arms from a stab wound that penetrated his heart. His mother, who was also present, was assaulted during the break-in.

The two men who physically entered the home were Viliami Taufahema and Joseph Nehme. Nehme had organised the robbery after receiving a tip from an acquaintance, Lisa Price, that Lembryk was a worthwhile target. Bilal Rahim drove Taufahema and Nehme to the premises and waited outside. Price and another woman, Sherene Rizk, had been with Nehme earlier that evening.

All four were charged with murder and assault with intent to rob in company. The jury acquitted Price and Rahim of murder but convicted them of the alternative charge of manslaughter by unlawful and dangerous act. Taufahema was convicted of murder. Rizk was acquitted on all counts. Nehme was tried separately and convicted of murder; his sentencing was to proceed separately.

  • What sentences were appropriate for each offender given their differing roles in the joint criminal enterprise?
  • How should the court apply the parity principle across offenders convicted of different offences arising from the same criminal enterprise?
  • What weight should be given to limited or reduced moral culpability for Price and Rahim, who were not physically present inside the home?
  • How should the court treat significant delays in proceedings reaching finality and hardship experienced in custody?
  • Whether a guilty plea offer previously made by Price had been validly withdrawn, and what sentencing discount, if any, applied.
  • How should special circumstances affect the non-parole periods, particularly where lengthy additional terms were warranted for rehabilitation?

Decision

McNaughton J applied standard sentencing principles under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), weighing purposes including retribution, deterrence, community protection, and rehabilitation. His Honour noted that the weight of each factor varied between the three offenders given their materially different roles and most serious offences.

On parity, the court found that the principle applied most directly as between Price and Rahim, who were convicted of the same offences. The disparity between those two and Taufahema, who was convicted of murder, was considered justified by the fundamental difference in their offences and culpability. The court also noted that parity would be relevant as between Taufahema and Nehme, although the evidence at their respective trials was not identical.

For Price and Rahim, the court accepted reduced moral culpability on the basis that neither was physically present inside the home and neither wielded the knife. The court also took into account delay in the proceedings, hardship experienced during custody, and the fact that both were on conditional liberty at the time of the offending, which was an aggravating factor. A contested question arose as to whether Price's earlier guilty plea offer had been validly withdrawn by the Crown. The court addressed this in the sentencing remarks, ultimately resolving the discount question on the facts of the plea history.

For Taufahema, who was convicted of murder and had pleaded guilty to the break and enter counts, the court imposed an indicative sentence of 22 years on the murder count. A 5% notional discount applied to the guilty pleas on Counts 3 and 4. Finding special circumstances, the court extended the additional term to allow a longer period on parole for rehabilitation. The indicative sentences for the first three counts were treated as notionally concurrent given the close connection of the criminality, with Count 4 partially cumulative by one year, reflecting that it involved a different victim.

Orders Made

Lisa Anne Price
- Sentenced to 8 years and 6 months imprisonment
- Non-parole period of 5 years and 2 months, commencing 9 December 2019
- Additional term of 3 years and 4 months, commencing 9 February 2025 and ending 8 June 2028

Bilal Rahim
- [Orders not located in provided text for Rahim's final sentence figures]

Viliami Bui Taufahema
- Sentenced to 23 years imprisonment
- Non-parole period of 16 years and 6 months, commencing 9 June 2020
- Additional term of 6 years and 6 months, commencing 9 December 2036 and ending 8 June 2043

Key Takeaways

  • Where offenders participate in a joint criminal enterprise that results in murder but are not the physical perpetrators, conviction for manslaughter rather than murder remains open to the jury, and the sentencing court must calibrate moral culpability accordingly.

  • The parity principle operates differently across offenders convicted of fundamentally different offences from the same enterprise. McNaughton J confirmed that parity has more direct force between co-offenders sentenced for the same offences, and less so when the principal offences diverge significantly, following Tasdik v R [2024] NSWCCA 195.

  • Significant delay in proceedings reaching finality is a mitigating factor the sentencing court must consider, alongside any hardship experienced by offenders in custody during that period.

  • Conditional liberty at the time of offending, such as being on bail or parole, remains a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW) and was applied against two of the three offenders here.

  • Finding special circumstances permits a court to reduce the non-parole period below the statutory ratio, extending the additional term to allow a more adequate period of supervised release, particularly where lengthy sentences make rehabilitation considerations significant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 24, 97, 112, 113
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 25E, 44, 54A
- Interpretation Act 1987 (NSW), s 33

Cases
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Markovic v R; Pantelic v R (2010) 30 VR 589; [2010] VSCA 105
- Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Eaton [2023] NSWCCA 125
- R v Forbes [2005] NSWCCA 377
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Millwood [2012] NSWCCA 2
- R v MJ [2023] NSWCCA 306
- R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 4) [2024] NSWSC 451
- R v Quinlan [2021] NSWCCA 284
- R v Steele [2024] NSWSC 214
- R v Tailford [2021] NSWSC 248
- R v Todd [1982] 2 NSWLR 517
- Ryan v Regina [2017] NSWCCA 209
- Tabbah v R [2019] NSWCCA 324
- Tasdik v R [2024] NSWCCA 195
- The Queen v Olbrich (1999