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Supreme Court 12 March 2024

R v Tarek Zahed

[2024] NSWSC 231

Public order & justice offences
SENTENCING HINDERING INVESTIGATION OF HOMICIDE GUILTY PLEA RELEVANT FACTORS ON SENTENCE WHERE OFFENDER FORMER NATIONAL SERGEANT ARMS OF COMANCHEROS

Citation: R v Tarek Zahed [2024] NSWSC 231
Court: Supreme Court of New South Wales
Date: 12 March 2024
Judge: Button J

Background

The offender was charged with hindering a police investigation into the unlawful killing of a man who died in the early hours of 11 December 2014. The deceased had been detained, restrained, beaten inside his own motor vehicle, and shot in the leg at close range. He was found unconscious in a suburban Sydney street and pronounced dead shortly after midnight.

The offender, then aged 34 and a former national sergeant-at-arms of the Comancheros outlaw motorcycle club, arranged for the deceased's vehicle to be cleaned of blood and then permanently destroyed. He directed an associate to dispose of it through a wrecking yard contact. When that failed, the associate paid a co-offender to destroy the vehicle by explosion. The co-offender ultimately attempted destruction by fire using an accelerant, but the fire was extinguished and police were able to examine the vehicle, though the examination was materially compromised by the prior cleaning and attempted destruction.

The offender's motivation was to protect his brother, who had been present at the scene. On 5 February 2024, he pleaded guilty to the hindering offence in full satisfaction of a prior indictment that had charged murder. The matter came before Button J for sentencing on 1 March 2024, with remarks delivered on 12 March 2024.

  • What objective seriousness should be attributed to this example of hindering a police investigation of homicide?
  • What weight should be given to the utilitarian value of the guilty plea?
  • Whether the plea evidenced remorse beyond an acceptance of responsibility?
  • How should the offender's extensive criminal history, commission of the offence while on parole, and role as an organising mind be treated as aggravating features?
  • What mitigating weight attached to the offender's near-fatal injuries sustained in a separate incident, the death of his brother in his presence, ongoing physical and psychological conditions, and extremely restrictive custody conditions?
  • Whether special circumstances existed justifying a reduction in the non-parole period?

Decision

Objective seriousness: Button J found this to be an objectively serious example of the offence. The underlying crime that was hindered was homicide, which carries a maximum of 25 years imprisonment and sits near the top of the spectrum of serious indictable offences. The person or persons responsible for the homicide have never been brought to justice, and the offender played a leading and organising role in the hindering conduct. The court was careful to note it was sentencing only for the hindering offence and not for anything more serious, while maintaining that the gravity of the underlying offence was a relevant consideration.

Plea of guilty and remorse: The parties agreed to a 5% discount for the utilitarian value of the late guilty plea, which Button J accepted. The plea was treated as evidence of an acceptance of responsibility, but the court declined to find that it evidenced remorse. The offender had not spoken in proceedings and a detailed psychological report placed before the court contained no expression of remorse on his part.

Aggravating features: The most significant aggravating feature was that the offence was committed while the offender was on parole. The court also weighed the offender's lengthy criminal history, which included prior convictions for serious public justice offences involving deliberate deception of a court. These features warranted a measure of general deterrence.

Mitigating factors and special circumstances: Button J accepted a range of significant mitigating circumstances. These included near-fatal injuries the offender sustained in a separate incident, the death of his brother in his presence, very serious ongoing physical injuries, diagnosed psychological conditions, and an exceptionally restrictive custody regime. The court also accepted that the offender's wife had developed anxiety and depression and that his eldest child was suffering from severe separation anxiety caused by the incarceration. Special circumstances were found, justifying a modest reduction in the non-parole period to maximise rehabilitation prospects, though Button J noted the resulting non-parole period was the least that could reflect the objective gravity of the matter.

Orders Made

  • The offender was convicted of hindering an investigation of homicide.
  • Head sentence: 3 years 9 months (starting point), discounted to 3 years 6 months for the guilty plea.
  • Non-parole period: 2 years 4 months (reduced from the calculated 2 years 7 months on account of special circumstances), commencing 28 August 2022 and expiring 27 December 2024.
  • Parole period: 1 year 2 months, expiring 27 February 2026.
  • First eligible date for release to parole: 27 December 2024.

Key Takeaways

  • Hindering an investigation whose underlying subject matter is homicide will be treated as an objectively serious instance of the offence, given the gravity of homicide and the proximity of its maximum penalty to the upper end of the serious indictable offence spectrum.
  • A guilty plea establishes an acceptance of responsibility and attracts a utilitarian discount, but does not of itself establish remorse; the court requires something more, such as direct expression from the offender or material from supporting reports.
  • Committing an offence while on parole remains a serious aggravating feature, capable of weighing heavily against an offender even where significant mitigating circumstances are present.
  • Special circumstances sufficient to reduce the non-parole period can be found where the combination of severe physical injury, psychological damage, and unusually restrictive custody conditions is established, though the resulting non-parole period must still reflect the objective gravity of the offending.
  • Prior convictions for deceiving a court can affect the weight a sentencing judge is prepared to give to subjective claims advanced on an offender's behalf, prompting a more cautious overall approach to the mitigating material.

Legislation and Cases Referenced

Legislation:
- Provisions creating the offence of hindering a police investigation of a serious indictable offence (dealt with on indictment; maximum penalty 7 years imprisonment). The specific statutory provision was not identified in the text provided.

Cases:
- No specific cases were identified in the metadata or the excerpted text of the judgment.