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Supreme Court 23 February 2024

R v Dastan

[2024] NSWSC 55

HomicideFirearms & weaponsPublic order & justice offences
CRIMINAL LAW MURDER SENTENCE FOR MURDER OFFENDERS VICTIM SHOT FOUR TIMES IN HIS OWN HOME STRONG NEED FOR GENERAL DETERRENCE

Citation: R v Dastan [2024] NSWSC 55
Court: Supreme Court of New South Wales
Date: 23 February 2024
Judge: Harrison CJ at CL

Background

The offender was convicted by jury of the murder of Craig Anderson, who was shot four times at his home in Doonside on 27 May 2019. The killing was an act of revenge: the offender had become convinced that the victim was responsible for an assault on his younger brother the previous day. The evidence established that this belief was false and that the victim had no personal involvement in the assault.

The offender recruited several co-offenders to assist him. One co-offender supplied a 9mm Glock semi-automatic pistol, others provided transport, and the group drove to the victim's address that evening. Two witnesses heard the offender confront the victim moments before the shooting, asking what had happened to his brother. The victim denied involvement, turned to flee, and was shot four times as he ran toward and into his front door.

The offender had previously been sentenced following jury verdicts against three co-accused in separate proceedings. He was now before the court for sentencing on the murder conviction and a separate conviction for participating in a criminal group under s 93T(1) of the Crimes Act 1900 (NSW).

  • Whether the court was satisfied beyond reasonable doubt that the offender was the person who fired the shots, given the offender's persistent denial at trial and the nomination of a co-accused as the actual shooter.
  • What the appropriate sentence was for murder, having regard to the objective seriousness of the offence, the offender's lack of remorse, his subjective circumstances (including a traumatic upbringing and mental health issues), and the need for general deterrence.
  • How to approach the comparison between the offender's moral culpability and that of his co-accused, who had already been sentenced.
  • How to sentence for the criminal group participation offence and how to structure the overall sentence.

Decision

Identity of the shooter: The offender maintained throughout that a co-accused (ZZ) had fired the gun. The court rejected this. Harrison CJ found beyond reasonable doubt that the offender was the shooter. The court placed significant weight on eyewitness testimony from a person present at the scene, who heard the offender confront the victim and watched the shooting unfold. The court also noted that the offender was likely wearing gloves (explaining the absence of gunshot residue on him), and that the words spoken immediately before the shooting were logically attributable only to the offender, given his escalating text messages in the preceding hours seeking to locate the victim and obtain a firearm.

Objective seriousness: The court characterised the offending as serious. The killing was premeditated, involved the recruitment of co-offenders, required obtaining a firearm, and was carried out at the victim's home in the presence of family and friends. The victim had no warning and no opportunity to protect himself. The court found the offending was driven by an irrational obsession and a stark disregard for human life, and identified a strong need for general deterrence.

Subjective circumstances: The offender showed no contrition or remorse and continued to deny culpability. The court found there were reasonable prospects of rehabilitation. The offender's traumatic and impoverished upbringing and his mental health issues were accepted as mitigating factors, consistent with the principle in Bugmy v The Queen that the effects of a deprived background do not diminish with the passage of time but remain relevant to moral culpability.

Comparison with co-offenders: The court acknowledged a difference in moral culpability between the offender and his co-accused but declined to treat that difference as warranting a significantly lower starting point. The offender had recruited the co-accused and organised their respective roles. The court reasoned that, in the particular circumstances, the fact that the offender pulled the trigger was not a basis for drawing a sharp distinction from those he had enlisted to assist him.

Orders Made

  • Murder: Imprisonment for 21 years commencing 27 May 2019 and expiring 26 May 2040, with a non-parole period of 15 years and 6 months expiring 26 November 2034.
  • Participating in a criminal group (s 93T(1), Crimes Act 1900): Imprisonment for 18 months commencing 24 August 2022 and expiring 23 February 2024.
  • Earliest parole eligibility: 27 November 2034.
  • The court noted, in compliance with s 25C of the Crimes (High Risk) Offenders Act 2006 (NSW), that the provisions of that Act have potential application to the offender.

Key Takeaways

  • A sentencing court may reach its own independent finding on a factual issue (such as the identity of the shooter) even where that same judge made a finding on the same issue when sentencing co-accused in earlier, separate proceedings. The offender is not bound by findings made in proceedings to which he was not a party, and the prosecution must again satisfy the court beyond reasonable doubt.
  • Where an offender persistently denies guilt and shows no contrition, the absence of remorse is a relevant consideration in sentencing, and no discount for contrition is available.
  • Under the principle confirmed in Bugmy v The Queen, a deprived and traumatic upbringing remains a relevant mitigating factor regardless of the offender's age at the time of the offence, and does not lose its significance simply because time has passed.
  • Recruiting and organising co-offenders into a joint criminal enterprise can diminish the significance of being the person who physically carried out the fatal act when comparing culpability across participants. The court declined to treat the act of pulling the trigger, in isolation, as a basis for a markedly different sentence from those imposed on the recruited co-offenders.
  • The Crimes (High Risk) Offenders Act 2006 (NSW) carries potential ongoing consequences beyond the sentence itself, and the court is required under s 25C to note its potential application at the time of sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93T(1) (participating in a criminal group)
- Crimes (High Risk) Offenders Act 2006 (NSW), s 25C

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Fairweather; R v Khoury [2023] NSWSC 814
- R v ZZ [2023] NSWSC 506
- Thach v R [2018] NSWCCA 252