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Supreme Court 9 July 2024

R v Lambroglou

[2024] NSWSC 829

HomicideFraud & dishonestyPublic order & justice offences
CRIME SENTENCE THREE GUILTY PLEAS TWO UNKNOWN SHOOTERS MURDER UNKNOWN TO HIM AT THE TIME MID

Citation: R v Lambroglou [2024] NSWSC 829
Court: Supreme Court of New South Wales
Date: 9 July 2024
Judge: Davies J

Background

The offender pleaded guilty to three offences arising from his involvement in the aftermath of a murder connected to an ongoing feud between the Comanchero Outlaw Motorcycle Gang (OMCG) and a family organised crime network in Sydney. On 14 May 2022, two unknown shooters killed Rami Iskandar, firing at him 14 times as he approached his front door. The offender had links to the Comanchero OMCG through his wife's cousin, a senior OMCG member, for whom he performed informal work.

Before the murder, the offender placed cloned number plates on the vehicle used by the shooters and positioned two getaway cars at prearranged locations. Critically, at the time he performed these acts, he did not know that a murder was planned. After the murder, however, and now knowing that the victim had been killed, the offender facilitated access to an underground carpark to hide one of the getaway vehicles. He later allowed that vehicle to be removed and destroyed, knowing it was being done to prevent police from identifying the shooters.

Separately, police found more than $561,000 in cash in the offender's possession in October 2022. He had been collecting and counting cash on behalf of the OMCG. He pleaded guilty to accessory after the fact to murder, participating in a criminal group, and dealing with property suspected of being proceeds of crime.

  • What discount applied to each guilty plea under Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), particularly where the offender made an early offer to plead that the Crown rejected and later accepted?
  • Whether the 25% discount under s 25E(2) and (3) applied to the criminal group charge, which appeared on an ex-officio indictment as a former alternative to the murder count.
  • Whether Division 1A addressed the situation where an offender offers to plead to a charge before committal, the Crown refuses, and then accepts after committal, and what discount applies in that circumstance.
  • What was the appropriate objective seriousness for each offence, and how did the offender's personal circumstances bear on the sentence?
  • Whether special circumstances existed to justify a longer parole period.

Decision

Accessory after the fact: Davies J assessed this offence at mid-range objective seriousness. The offender knew of the murder when he helped conceal the getaway vehicle and later allowed its destruction to frustrate the investigation. The two unknown shooters have not been apprehended, which weighed in favour of general deterrence and retribution. Because the offender had offered to plead guilty before committal and that offer was later accepted, he was entitled to the full 25% discount under s 25E(2) and (3), reducing the indicative sentence from 3 years 6 months to approximately 2 years 7 months.

Participating in a criminal group: The criminal group charge originated as a backup alternative to the murder count and was certified under s 166 before appearing on the ex-officio indictment. The exception in s 25D(3)(a) and (4) applied, disentitling the offender to the full 25% discount. The facts and evidence underpinning this charge were the same as those in the brief of evidence. A 10% discount applied, reducing the indicative sentence from 2 years to approximately 1 year 9 months.

Proceeds of crime: Three separate proceeds of crime charges were originally brought. Division 1A contains no provision addressing an early plea offer that is rejected and only later accepted after committal. Davies J identified this as a lacuna in the legislation, noting that the scheme was inconsistent with the Early Appropriate Guilty Plea (EAGP) system in this respect. A 10% discount under s 25D(2)(b)(i) was applied, reflecting the guilty plea and the agreed statement of facts demonstrating willingness to facilitate the course of justice, reducing the indicative sentence from 3 years to approximately 2 years 8 months.

Personal circumstances and sentence: A psychological report documented a childhood marked by domestic and sexual violence, with diagnoses of PTSD, persistent depressive disorder, and various drug use disorders. Davies J found genuine remorse, a limited criminal history, good rehabilitation prospects, and a low risk of reoffending. The offender had remained drug-free throughout custody. Special circumstances were found given his pre-custody drug addiction, warranting a longer parole period to allow supervised reintegration. An aggregate sentence was imposed given the linked nature of the offences.

Orders Made

  • Aggregate sentence of 4 years 6 months, commencing 8 October 2022 and expiring 7 April 2027.
  • Non-parole period of 3 years, expiring 7 October 2025.
  • First eligible for parole on 7 October 2025.
  • Offences on the s 166 Certificate dismissed.

Key Takeaways

  • Where an offender offers to plead guilty before committal and the Crown rejects then later accepts that offer, s 25E(2) and (3) entitles the offender to the full 25% discount for the relevant charge, provided the other statutory requirements are met.
  • Under s 25D(3)(a) and (4), a charge that originated as an alternative to another count and appears on an ex-officio indictment falls within the exception to the 25% discount, with only a lesser discount available.
  • Division 1A contains a lacuna: it does not address the proceeds of crime scenario where an early plea offer is made, refused, and only accepted after committal, leaving the court to apply a 10% discount as the closest available provision consistent with the EAGP framework's objectives.
  • Participation in pre-murder logistics (placing cloned plates, positioning getaway vehicles) did not, on these facts, constitute the accessory offence itself, because the offender lacked knowledge of the planned murder at that point. The accessory liability attached to his post-murder conduct once he had actual knowledge.
  • Personal circumstances reflecting serious childhood trauma and resulting psychiatric conditions, assessed consistently with Bugmy v The Queen, remained relevant to mitigation even where general deterrence and retribution were identified as substantial sentencing considerations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 93T, 193C, 316, 349
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 25D, 25E

Cases:
- Ah Keni v R [2021] NSWCCA 263
- Bugmy v The Queen (2013) 249 CLR 571
- Doudar v R [2021] NSWCCA 37
- Doyle v R (2022) 108 NSWLR 1
- Dukagjini v R [2023] NSWCCA 210
- LN v R [2020] NSWCCA 131
- Paxton v R [2011] NSWCCA 242
- R v De Simoni (1981) 147 CLR 383
- R v Hamalainen [2020] NSWSC 1705
- R v Johnson [2014] NSWSC 1254
- R v McCloskey (No 5) [2020] NSWSC 1087
- R v Struik [2023] NSWSC 1548
- R v Ward [2004] NSWSC 420
- Shi v R [2014] NSWCCA 276
- TT v R [2014] NSWCCA 206
- Yacoub v R [2021] NSWCCA 166