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Supreme Court 16 December 2024

R v Nehme (No 7)

[2024] NSWSC 1617

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

Citation: R v Nehme (No 7) [2024] NSWSC 1617
Court: Supreme Court of New South Wales
Date: 16 December 2024
Judge(s): McNaughton J

Background

In the early hours of 7 December 2019, two men broke into a home at Condell Park, New South Wales. During the break-in, one of the men stabbed the occupant, Luke Lembryk, five times. A stab wound to the chest penetrated his heart, and he died shortly afterwards in the arms of his mother, Robyn Bradley, who was also assaulted during the incident. Lembryk was 29 years old.

The offender, Joseph Nehme, had recruited his co-accused, Viliami Bui Taufahema, earlier that evening to carry out the robbery, after receiving a tip from an acquaintance that Lembryk was a worthwhile target. Nehme arranged for Taufahema to be driven to Lembryk's home. Nehme was convicted of murder and assault with intent to rob in company following a jury trial in April 2024, and had earlier, in May 2021, pleaded guilty to a charge of aggravated break and enter with intent to commit a serious indictable offence (the assault on Ms Bradley).

Nehme's trial was separated from those of four co-accused, who had been tried together between November and December 2023. Of those co-accused, Sherene Rizk was acquitted, while Lisa Anne Price, Bilal Rahim, and Taufahema were convicted and sentenced.

  • What sentence was appropriate for murder, assault with intent to rob in company, and aggravated break and enter, taking into account the circumstances of a joint criminal enterprise?
  • What weight should be given to the standard non-parole period of 20 years for murder as a sentencing guidepost?
  • Whether a life sentence was warranted given the level of culpability involved.
  • How the principles of parity, totality, and special circumstances applied in constructing an aggregate sentence.
  • What findings of fact, consistent with the jury's verdicts, could be made for sentencing purposes.

Decision

McNaughton J declined to impose a life sentence, finding that the level of culpability, while serious, did not reach the threshold required under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for that outcome. The Crown did not submit that a life sentence was appropriate, and the court agreed it was not warranted on the facts.

The court applied the purposes of punishment under s 3A of the Crimes (Sentencing Procedure) Act, including denunciation, deterrence, accountability, community protection, and rehabilitation. The judge noted that the offence of murder, carrying a maximum penalty of life imprisonment and a standard non-parole period of 20 years, required a sentence reflecting the profound value the community places on human life.

The court identified several factors relevant to Nehme's circumstances, including that he was on conditional liberty at the time of the offending, that he had limited reduced moral culpability, that he had experienced hardship in custody, and that there had been delay in the trial being heard to finality. The court also had regard to the parity principle, particularly in comparing Nehme's sentence with that of Taufahema, while acknowledging that the evidence and number of charges across the two trials were not identical.

In constructing the aggregate sentence, the court treated the indicative sentences for Counts 1 and 2 as notionally concurrent, given the close connection of the criminality. Count 5, involving a different victim (Ms Bradley), was treated as notionally partially cumulative by one year. The court found special circumstances justifying a non-parole period below the statutory default ratio.

Orders Made

  • Count 1 (murder): indicative sentence of 20 years and 6 months, with an indicative non-parole period of 14 years and 9 months.
  • Count 2 (assault with intent to rob in company): indicative sentence of 5 years.
  • Count 5 (aggravated break and enter, assault with intent): indicative sentence of 4 years and 9 months, with an indicative non-parole period of 3 years and 3 months.
  • Aggregate sentence of 21 years and 6 months' imprisonment, commencing 9 December 2019.
  • Non-parole period of 15 years, commencing 9 December 2019.
  • Additional term of 6 years and 6 months, commencing 9 December 2034 and ending 8 June 2041.
  • Nehme was advised of the application of the Crimes (High Risk Offenders) Act 2006 (NSW) to the murder conviction, as required by s 25C of that Act.

Key Takeaways

  • Under s 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a life sentence for murder requires that the level of culpability be so extreme that only that sentence can satisfy the community interest in retribution, punishment, protection, and deterrence. The Supreme Court found that threshold was not met on the facts of this case.
  • The standard non-parole period of 20 years for murder and the maximum penalty of life imprisonment operate as important statutory guideposts, not rigid starting points, to be weighed alongside all other relevant sentencing factors, consistent with Muldrock v The Queen and Markarian v The Queen.
  • Where an offender is sentenced for charges arising from closely connected criminality, the totality principle may warrant treating indicative sentences as notionally concurrent, even where the charges are technically separate.
  • A finding of special circumstances can justify reducing the non-parole period below the statutory default ratio, with the result that the balance of the term available for supervision on release is extended.
  • The parity principle requires a sentencing court to consider consistency with sentences imposed on co-accused, even where trials were separated and the evidence or charges were not identical.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 19A, 97, 112
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 30E, 44, 54A, 61
- Evidence Act 1995 (NSW), s 191

Cases
- 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
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
- R v Chamma; R v Hicks (No 3) [2023] NSWSC 1057
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Nehme (No 3) [2024] NSWSC 515
- R v Nehme; R v Price; R v Rahim; R v Rizk; R v Taufahema (No 4) [2024] NSWSC 451
- R v Price; R v Rahim; R v Taufahema [2024] NSWSC 1419
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54