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Supreme Court 5 April 2024

R v Sultani

[2024] NSWSC 338

Homicide
SENTENCING MURDER C ONTEXT OF ORGANISED CRIMINAL ACTIVITY

Citation: R v Sultani [2024] NSWSC 338
Court: Supreme Court of New South Wales
Date: 5 April 2024
Judge: Ierace J

Background

The offender, aged 35, pleaded guilty one week before trial to the murder of a fellow outlaw motorcycle gang member between 22 and 27 June 2015. The victim was last seen alive on the evening of 23 June 2015, when he got into a van connected to the offender's criminal group. His body was discovered at a fire trail near Cowan on 26 June 2015, bearing four gunshot wounds to the back of the head. The body had been treated with bleach and the head bound in plastic before being dumped.

The offender had been the president of the Rebels Burwood chapter of an outlaw motorcycle gang (OMCG) and led a criminal group of approximately 15 members until his arrest on 29 November 2016. At the time of sentencing, he was already serving three life sentences and three other determinate sentences for separate murders and serious criminal offences committed during the same period.

This was the offender's fifth murder conviction, and the second in chronological order of commission. The other four murders had been dealt with in prior proceedings before Hamill J and Fagan J respectively.

  • What sentence was appropriate for this murder, having regard to the offender's existing sentences (including three life terms) and the need for totality?
  • What discount applied for the late guilty plea entered approximately one week before trial?
  • Whether the agreed facts document prepared for trial warranted additional mitigation under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) as facilitating the administration of justice.
  • How the offender's conditions of imprisonment at a High Risk Management Correctional Centre should factor into the sentence.

Decision

Ierace J sentenced the offender for this murder on the basis of his criminal record as it stood at the time of the offence, while noting that his subsequent offending was relevant to assessing rehabilitation prospects. His Honour fixed a starting point of 35 years imprisonment, reflecting the seriousness of a premeditated killing carried out in the context of organised criminal activity, with general deterrence and denunciation prominent among the sentencing objectives.

A discount of 10 per cent was applied on the utilitarian basis of the guilty plea pursuant to s 25D(4) of the Crimes (Sentencing Procedure) Act 1999, reducing the total sentence to 31 years and 6 months. His Honour rejected the offender's submission that the agreed facts document warranted further mitigation under s 22A. That provision, in his Honour's view, rewards the utilitarian benefit of a trial confined to real issues in dispute, not the preparation of agreed facts in advance of a plea.

The sentence was backdated to commence on 20 May 2020, taking limited account of totality given the multiple sentences already running from 29 November 2016. His Honour accepted that the offender's conditions at the Goulburn High Risk Management Correctional Centre, including restrictions beyond those applying to the general prison population and a prior serious assault in custody, were a relevant mitigating factor.

Orders Made

  • The offender is sentenced to imprisonment for 31 years and 6 months, commencing 20 May 2020 and expiring 19 November 2051.
  • A non-parole period of 23 years is fixed, expiring 19 May 2043.

Key Takeaways

  • A guilty plea entered one week before a scheduled trial attracted a 10 per cent utilitarian discount under s 25D(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), consistent with the statutory framework for late pleas.
  • Preparation of an agreed facts document for trial does not, of itself, attract additional mitigation under s 22A of the Crimes (Sentencing Procedure) Act 1999. The Supreme Court held that s 22A rewards the utilitarian benefit of limiting disputed issues at trial, not the mere production of agreed materials in connection with a guilty plea.
  • Where an offender is already serving multiple life sentences, a non-parole period for a further sentence may still be fixed if it carries practical utility, and totality considerations informed the backdating of the sentence commencement date.
  • Harsh conditions of imprisonment, including placement in a High Risk Management Correctional Centre and exposure to serious assault in custody, constitute a relevant mitigating factor on sentence.
  • General deterrence and denunciation carried significant weight in sentencing for a murder connected to the organised activities of a criminal group, even where those objectives were tempered by the offender's existing sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 22A, 25D(4), 61(1)

Cases:
- DH v R [2022] NSWCCA 200
- R v Sultani [2023] NSWSC 645 (sentencing by Hamill J for the murder of Nikola Srbin)
- R v Sultani; R v Munshizada; R v Baines; R v Danishyar [2021] NSWSC 1654 (sentencing by Fagan J for three further murders)
- R v Walker [2023] NSWCCA 219